Vivek Rusia, J.

1. The petitioner has filed the present petition challenging the validity criteria of NIT dated 13.05.2022 issued by the Indore Development Authority, Indore for the design and construction of the flyover including allied works at Khajrana square along with Ring Road Indore.

2. The petitioner is an association of builders and contractors working with various government and semi-government organizations. The association has authorized its Chairman Shri Arun Kumar Jain to appoint, advocate and file this petition. However, the petitioner has not disclosed the names of its members and how many members are being affected by the aforesaid condition of NIT.

3. Respondent No. 4/Indore Development Authority is the statutory body constituted under the provisions of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973. The Indore Development Authority has issued an impugned NIT inviting bids for qualified tenderers. The probable amount of the contract is Rs. 43,25,13,710/- with a completion period of 18 months including the rainy season. The bid can be purchased only online from 13.05.2022 to 06.06.2022. The petitioner is aggrieved by eligibility criteria provided in instructions to bidders A/3, which is reproduced below:

"3. ELIGIBILITY CRITERIA

3.1. Eligibility criteria for applicant firm shall be as under

i) Experience of having completed/substantially completed works as contractor for any State Govt. Central Govt. Corporation, Development authorities as below.

(a) One work of Flyover/ROB/Grade Separator/Major Bridge with PSC super structure, cost not less than the Rs. 26 Cr. (excluding GST/Service Tax) during the last 7 years from the date of NIT.

OR

(b) Two work of Flyover/ROB/Grade Separator/Major Bridge with PSC super structure, cost of less than the Rs. 26 Cr. (excluding GST/Service Tax) during the last 7 years from the date of NIT.

Note:

1. The experience should be as on date of publication of this NIT.

2. Certificate issued by Principal Employer or his authorized person not below the rank, or Executive Engineer should be submitted.

3. The bidders are requested to enclose only requisite and relevant dated which has been asked for. Attachment of irrelevant data shall attract to disqualify the bid. In support of above the bidder should enclose not more than 3 relevant certificate.

4. Enhancement factor as per clause 3.2 will be applicable.

5. Only those substantially completed work will be considered which are open for traffic & certified as such by the competent authority not below the rank of Executive Engineer.

6. The bidder should not have been blacklisted/debarred/in negative list by any of the government department/semi-government department or local self government during last 5 years. Provide self declaration on stamp paper duly notarised.

(INFORMATION IS TO BE GIVEN IN RELEVANT FORM)

ii) Annual average turnover:

Minimum average annual turnover for civil construction of the firm as per the audited balance sheet for the last five financial years (i.e. 2016-17 to 2020-2021) should not be less than Rs. 35.00 Cr.

Note:

(a). The statement of turnover from civil work shall be supported by a certificate from a Chartered Accountant.

(b) The successful completed work/substantially completed certificate should be clearly marked separately in the Technical Proposal.

(c) The financial years means year starting from 1st April to 31st March of next year.

(d) If the certificate mentioned in 3.1 (I) (a)/(b) issued by the employer is for inclusive values then a certificate from CA for its bifurcation into base value and taxes separately, should be submitted."

4. According to the petitioner, the aforesaid stringent criteria have been provided only to accommodate the persons/firms/companies of its choice. Only a few firms are eligible to participate in the tender having an annual turn of 35.00 Cr. and above who have completed one work of similar nature not less than Rs. 44.00 Cr. during the last seven years. Shri Shekhar Sharma, learned counsel for the petitioner submits that only in this NIT such an arbitrary condition has been incorporated whereas in earlier tenders issued by IDA, Municipal Corporation and State Government, even NHAI for similar nature of work no such criteria have been prescribed. In para 5.9 of the writ petition, the petitioner has given detail in support of the aforesaid contention. It is further submitted that the Central Vigilance Commission (CVC) has set up norms for inviting tender in which it has been specifically mentioned that the eligibility criteria should be formed in such a manner in which the minimum eligible qualification is required so that the maximum person can participate in the bidding process. The present impugned eligibility criteria of NIT do not match the norms set up by NHAI and MPPWD. Being aggrieved by the aforesaid action, the petitioner's association and some members have submitted representations on 17.05.2022, 25.02.2022 and 27.05.22 seeking modification of the aforesaid condition. Since no heed was given, therefore, petitioner has approached this Court by way of the writ petition.

5. Ms. Mini Ravindran, learned counsel for the respondent/Indore Development Authority submits that the association has no locus to file a writ petition challenging the eligibility criteria. In response to impugned NIT number of bids have been received and all the bidders are the members of the association, therefore, it cannot be said that all the members of the association are aggrieved by the impugned conditions of NIT. The aggrieved members who are not qualifying with this condition can file a writ petition before this Court. It is further submitted that in the Government contract the authorities within its jurisdiction are competent to fix eligibility criteria by looking at the nature of work and the experience. The Writ Court exercising power under Article 226 of the Constitution of India cannot sit as an appellate authority to examine the terms and conditions of the contract, hence writ petition is liable to be dismissed.

We have heard the learned counsel for the parties and perused the record.

6. The petitioner is an association of builders that is certainly competent to raise a grievance to its members but the petitioner should disclose the strength of its membership and how many members are aggrieved by the impugned condition of NIT. As stated by Ms. Mini Ravindran, several bids have been received, therefore, it is not a case that the impugned eligibility criteria of NIT aggrieve all the members. The builders/firm engaged in the business of construction who are not fulfilling said criteria is competent enough to challenge the aforesaid condition by filing a writ petition. The association cannot said to be an aggrieved person for filing the petition challenging the condition of tender. Counsel for the petitioner has placed reliance on the judgment passed by the Division Bench of this Court in the case of Association of the Residents of Mhow Vs. Union of India and Ors. reported in AIR 2010 MP 04 in which petition filed by the Association of Residents of Mhow has been disposed of. The aforesaid petition was filed by the Association of the residents of Mhow, a cantonment near Indore in Madhya Pradesh in which all the members had a grievance against the cantonment authorities, there was no inter se dispute between them, therefore, the facts of the case are altogether difference with the present case. In the present case, some of the members of the association have fulfilled the eligibility criteria and have participated in the tender and one of them might get the tender, therefore, there is inter se dispute between the members of the petitioner's association, hence, petitioner being an association has no locus of the file writ petition.

7. As far as interference by the High Court under Article 226 of the Constitution of India in respect of tender matters is concerned, the learned counsel for the petitioner has placed reliance on the judgment passed by the Apex Court in the case of Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and Ors. AIR 2000 SC 2272, Union of India (UOI) and Ors. Vs. Dinesh Engineering Corporation and Ors. AIR 2001 SC 3887, Sterling Computers Limited and Ors. Vs. M& N. Publications Limited and Ors. AIR 1996 SC 51. The petitioner alleges that by forming this eligibility criteria in the tender, the IDA is giving the benefit of some selected firm/bidder. The petitioner being an association has not given the name of those person/firms who are going to be benefited from this eligibility criteria. Therefore, such a vague allegation, it cannot be said that such a condition is a tailor-made condition in the NIT.

8. The total probable cost of the contract is 43.00 Cr. approximately and by way of eligibility criteria, the respondent has invited the bids from the firm who have completed similar nature of work not less than 44.00 Cr. during the last seven years from the date of NIT or two work of similar work not less 26.00 Cr. during seven years and a minimum average annual turnover of the firm since last five years should not be less than 35.00 Cr., therefore, there is no arbitrariness in prescribing the eligibility criteria by the respondents.

9. The Apex Court in case of Balaji Ventures Pvt. Ltd. Vs. Maharashtra State Power Generation Company Ltd. & Anr. (SLP No. 1616/2022 & 1673/2022) has held as under:-

"5.1 Now so far as the impugned Judgment and order passed by the High Court dismissing the writ petitions is concerned, what was challenged before the High Court was one of the tender conditions/clauses. The High Court has specifically observed and noted the justification for providing clause 1.12(V). The said clause was to be applied to all the tenderers/bidders. It cannot be said that such clause was a tailor made to suit a particular bidder. It was applicable to all. Owner should always have the freedom to provide the eligibility criteria and/or the terms and conditions of the bid unless it is found to be arbitrary, mala fide and/or tailor made. The bidder/tenderer cannot be permitted to challenge the bid condition/clause which might not suit him and/or convenient to him. As per the settled proposition of law as such it is an offer to the prospective bidder/tenderer to compete and submit the tender considering the terms and conditions mentioned in the tender document.

5.2 In the case of Silppi Constructions Contractors vs. Union of India, (2020) 16 SCC 489, it is observed in para 20 as under:

"20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case."

5.3 In the case of Montecarlo Limited vs. National Thermal Power Corporation Limited,  (2016) 15 SCC 272, it is observed and held that the tender inviting authority is the best person to understand and appreciate its requirement and tender documents, so long as there are no mala fides/arbitrariness etc. It is further observed and held that the Government must have freedom of contract and such action can be tested by applying Wednesbury principle and also examining whether it suffers from arbitrariness or bias or mala fides.

6. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and when it is found that clause 1.12(V) cannot be said to be arbitrary, mala fide and/or tailor made and the same shall be applicable to all the bidders/tenderers and there is justification also shown providing such a clause and even subsequently a corrigendum has been issued and even the Respondent No. 2 private siders also made it clear that uniform charge shall be quoted for each bidder and even clause 1.12(V) was modified to the extent the necessary permission/consent/no objection certificate that was required at the time of submission of the bid was now required to be submitted before the opening of the price bid and the date for submission of the bid was extended, the High Court has rightly dismissed the writ petition and has rightly refused to interfere with the decisions of the respondents providing clause 1.12(V) of the tender document."

10. The Apex Court in case of N.G. Projects Limited Vs. Vinod Kumar Jain and Ors. (Civil Appeal No. 1846/2022) has held as under:-

"17. Therefore, the position of law with regard to the interpretation of terms of the contract is that the question as to whether a term of the contract is essential or not is to be viewed from the perspective of the employer and by the employer. Applying the aforesaid position of law to the present case, it has been the contention of respondent No. 1 that the format for bank guarantee was not followed strictly by the State and that the relaxation given was not uniform, in that respondent No. 1 was singled out. The said contention has found favour with the Courts below.

23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."

11. In view of the above, no case is made out for interference, accordingly, Writ Petition is dismissed.