R.K. Agrawal JUDGMENT
Madan B. Lokur, J.
1. In Civil Appeal No. 9078 of 2016 and Civil Appeal No. 9079 of 2016 filed by Afcons Infrastructure Ltd., the challenge is to the judgment and orders dated 28th July, 2016 and 11th August, 2016 passed by the Bombay High Court. In Civil Appeal Nos. 9080-9081 of 2016 filed by the Nagpur Metro Rail Corporation Ltd., the challenge is to the judgment and orders dated 28th July, 2016 and 12th August, 2016 passed by the Bombay High Court. The combined effect of all the impugned orders is that the High Court held that M/s. Guangdong Yuantian Engineering Company (GYT) of China and M/s. TATA Projects Limited (TPL) as a Joint Venture (hereinafter referred to as the 'GYT-TPL JV') are eligible to bid for a tender invited by the Nagpur Metro Rail Corporation Limited (for short 'NMRCL') on 12th May, 2016.
2. Bids were invited by NMRCL for the design and construction of a viaduct in Reach-3 between Jhansi Rani Square and Lokmanya Nagar Stations from CH 7825M to CH 18212M on the East-West Corridor of Nagpur Metro Rail Project.
3. GYT-TPL JV gave its bid for the contract but NMRCL, by an e-mail dated 23rd July, 2016 communicated to GYT-TPL JV that its bid was disqualified at the technical bid opening. The comment/remark relating to the disqualification stated that the documents submitted by GYT-TPL JV do not meet the eligibility conditions as stipulated in Clause 4.2(a) of Section III of the bid documents.
4. The controversy on the eligibility of GYT-TPL JV arises in view of Clause 4.2(a) of Section III of the tender conditions which reads inter alia as follows:
5. According to GYT-TPL JV, it had executed the Pearl River Delta intercity high speed railway project in China; it had received INR 3200 million from that project and it had constructed a viaduct of 7.284 km length under that contract. Before the High Court and before us, there was no controversy that GYT-TPL JV had received a minimum of INR 3200 million from its Pearl River Delta Intercity High Speed Railway Project and that whether it had completed a viaduct having a length of not less than 5 km. The sole question before the High Court was whether the Pearl River Delta Intercity High Speed Railway Project met the requirement of a 'metro civil construction work'. According to NMRCL, an inter-city high speed railway project did not meet the requirements of a metro civil construction work.
6. The High Court disagreed with NMRCL in the following words:
The civil construction work completed by the Petitioner [GYT-TPL JV] in terms of condition No. 4.2(a) was for an intercity high speed railway project in China and in the said contract, the Petitioner had completed a viaduct of 7.284 km length....The Petitioner has admittedly constructed a viaduct of not less than 5 km for the prestigious Pearl River Delta Intercity high speed railway project in China. We find on a reading of the tender conditions and particularly Clause 4.2(a) thereof that a contractor or a joint venture company is required to have the experience in Metro Civil Construction work and of completing a viaduct having a length of not less than 5 kms. We do not appreciate the submission on behalf of the Respondent that since the Petitioner had constructed the viaduct for a high speed railway p........