2025:UHC:5102-DB 1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE CHIEF JUSTICE MR. G. NARENDAR AND THE HON’BLE JUSTICE MR. ALOK MAHRA Writ Petition (M/B) No.340 of 2025 18th June, 2025 M/s Maccaferri Infrastructure Pvt. Ltd. --Petitioner Versus Union of India and Others --Respondents ---------------------------------------------------------------------- Presence:- Mr. Mridul Bhatt and Mr. Manik Dutt, learned counsel for the petitioner. Mr. Manoj Kumar, learned counsel for the Union of India. Mr. B.S. Parihar, learned Addl. C.S.C. along with Mr. S.M.S. Mehta, learned Brief Holder for the State. ---------------------------------------------------------------------- JUDGMENT : (per Mr. G. Narendar, C. J.) Heard learned counsel for the petitioner, learned counsel for the Union of India and learned counsel for the State of Uttarakhand. 2. The case of the petitioner, in a nutshell, is that the petitioner was a subsidiary of a company registered with the ROC and called as ‘M/s Maccaferri Infrastructure Pvt. Ltd. (MIPL)’ and, that later, in 2017 i.e. on 18.04.2017, the subsidiary was demerged and created as an independent entity on the issuance of the 2025:UHC:5102-DB 2 certificate of incorporation. The issue canvassed in the writ petition is as follows:- “4. That the moot question before this Hon'ble Court, which arises for kind consideration of this Hon'ble Court, inter alia would be-(A) As to whether in a case of Demerger of Company, the experience of the demerged company can be taken as the experience of the resulting company under the Scheme of Demerger which specifically transfers all the rights, interests, assets and liabilities of a demerged company to the resulting company; & (B) As to whether when a statutory functionary makes an order based on certain grounds, can the said order be further supplemented by totally new and fresh reasons and as to whether the validity of the said order is to be judged by the reasons so mentioned in the original order?” 3. The issue that is formulated by the petitioner is an answer to the petition prayers. The Technical Evaluation Committee i.e. fourth respondent, after looking into various aspects, has held that the Work Experience Certificate issued to the holding company or, in other words, the mother entity i.e. MESPL, will not inure to the benefit of the instant petitioner, that is, M/s. (MIPL); that the documents showing release of payments for execution of the work by the petitioner would be of no avail, as the work was allotted to MESPL i.e. the mother entity and that the petitioner (MIPL) had no work experience as mandated under Clause 2.2.2.2.(ii) of the RFP, the general conditions of the 2025:UHC:5102-DB 3 contract. The above referred clause of the GCC, which is also reproduced in para 9 of the pleadings, reads as under:- “(ii) For normal Highway projects (including Major Bridges/ROB/Flyovers/Tunnels): Applicable Provided that at least one similar work (in hill / mountainous region) of 20% of Estimated Project Cost [Rs. 12.76 Crore (Rs. Twelve Crore Seventy Six lakh only)] shall have been completed from the Eligible Projects in Category 1 and/or Category 3 specified in Clause 2.2.2.5 in the last 10 (Ten) financial years preceding the Bid Due Date. For this purpose, a project shall be considered to be completed, if more than 90% of the value of work has been completed and such completed value of work is equal to or more than 20% of the estimated project cost. The similar work must include the following items. 4. As pointed out by the learned counsel for the petitioner, the eligibility condition is in two parts. The first part mandates that the bidder should have received payments for consideration of eligible projects; and the second part mandates that the bidder must have undertaken construction by itself in PPP projects and for a sum amounting to nearly ₹48 crores; that apart, the proviso also mandates that, at least one work of similar nature, ought to have been executed in a hill/mountainous region. 5. In the case on hand, the facts are not in dispute. The work was allotted to the so-called mother entity, namely, M/s MESPL and not in favour of the 2025:UHC:5102-DB 4 petitioner i.e. MIPL. The Work Experience Certificate has been issued by the authority in favour of M/s MESPL and the payments have also been released by the employer in favour of M/s MESPL. Though, the petitioner claims to have executed the work, the Work Certificate does not disclose execution of the contract by the petitioner. 6. The moot question is whether the private arrangements between the private entities would enable the Tendering Authority or the employer to issue a Work Experience Certificate? In the, prima facie, opinion of this Court, there is no such provision, which would enable the Tendering Authority or the employer, to issue the Work Certificate, certifying the execution of the work by a third party other than the Tendering Entity, unless and until, the work has been executed in a PPP model or by a SPV. In the instant case, neither being the case, we find no illegality in the reasons set out by the Tender Evaluation Committee (TEC) to declare the bid of the petitioner as non-responsive. 7. That apart, the case canvassed by the petitioner also requires to be rejected on another ground of ambiguity. The Tender Evaluation Committee is not a legal expert, which can be called upon to adjudicate any 2025:UHC:5102-DB 5 legal niceties or legal issues. To expect the TEC to function as an adjudicatory body, in the nature of a Tribunal or a Court, would result in disastrous consequences. Such ambiguities and legal niceties, if have to be appreciated by the TEC, the same would result in humongous delays virtually rendering the budget allocated for the project, a mirage. The essence of a contract is in the expeditious execution and the factors, which would delay the execution, more particularly, projects which can relate to infrastructure, building or which relate to safety measures as in the instant case i.e. measures to prevent the landslides, we are of the considered opinion that it would be beyond the expectations to expect the TEC to act as an adjudicatory body. The language of the GCC being simple and there being no ambiguity in the same, we do not find any substance in the grounds canvassed by the petitioner. The condition, more particularly, the words “the bidder shall” indicate the mind of the tendering authority, which requires that the bidder, or the person tendering the bid documents, who desires to execute the project shall be the person who shall have the experience stipulated under the condition. 2025:UHC:5102-DB 6 8. In the instant case, the undisputed fact is that the work has been allotted to a third-party/entity and the consideration for execution of the work has also been paid by the authorities to the third party entity and the records also reflecting the name of the third party entity, this Court has no hesitation to reject the case of the petitioner and uphold the impugned endorsement. 9. After dictation of the above order, the learned counsel for the petitioner also places reliance on Clause 2.2.2.6(ii), which reads as under:- (ii) For a project to qualify as an Eligible Project under Categories 3 and 4, the Bidder should have received payments from its client(s) for construction works executed, fully or partially, or work executed and certified by the Engineer-in-charge/Independent Engineer/Authority's Engineer during the 5 (five) financial years immediately preceding the Bid Due Date, and only the amounts (gross) actually received/ work executed, during such 5 (five) financial years shall qualify for purposes of computing the Experience Score. However, receipts of or work executed amount less than [Rs. 3.19 Crore (Rs. Three Crore and Nineteen Lacs only)] shall not be reckoned as receipts for Eligible Projects. For the avoidance of doubt, construction works shall not include supply of goods or equipment except when such goods or equipment form part of a turn-key construction contract / EPC contract for the project. Further, the cost of land and also cost towards pre-construction activities (like shifting of utilities etc.) shall not be included hereunder. 10. A plain reading of the above would only buttress the view expressed by this Court. The above condition further amplifies the fact that the certificate 2025:UHC:5102-DB 7 ought to have been issued by the authority i.e. Engineer-in-charge/ Independent Engineer/Authority’s Engineer and, in the instant case, there is no such certificate available, favouring the Petitioner. The appreciation and conclusion drawn by the Tender Evaluation Committee not suffering from any infirmity, the same does not warrant any interference. 11. Accordingly, the writ petition stands rejected. There shall be no order as to costs. (G. NARENDAR, C. J.) (ALOK MAHRA, J.) Dated: 18.06.2025 BS BALWANT SINGH Digitally signed by BALWANT SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=fbbd191c8bdb8b16e8ca7937deaf72a17c02fe 2eacbf28cdf4ba7ce8640c5820, postalCode=263001, st=UTTARAKHAND, serialNumber=04E141DF4614F9A4D5F48346EB553DE5 185F418755DC00A7A13C14A680C3FA90, cn=BALWANT SINGH Date: 2025.07.02 18:47:46 +05'30'