Jammu & Kashmir High Court – Srinagar Bench
M/S Hafiz Tariq Corporation vs Union Territory Of Ladakh And on 6 February, 2026
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Serial No. 127
Suppl. Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 194/2026 CM 456/2026
M/S Hafiz Tariq Corporation
Private Limited ...Petitioner(s)/Appellant(s).
Through: Mr. Jehangir Iqbal Ganai, Sr. Advocate with
Mr. Owais Majeed, Advocate.
Vs.
Union Territory of Ladakh and
Others. ...Respondent(s).
Through: Ms. Bisma Ali, Advocate vice
Mr. T.M. Shamsi, DSGI.
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
06.02.2026
1. Ms. Bisma Ali, Advocate, appearing vice Mr. T.M. Shamsi, Ld.
DSGI, accepts notice in the matter on behalf of the respondents.
2. Reply in the main petition and objections to the interim application
shall be filed positively by the next date of hearing.
3. Heard learned counsel for the applicant/petitioner in respect of his
prayer for grant of relief in interim application bearing No. CM
456/2026.
4. The case of the applicant/petitioner, as projected through the medium
of the instant petition having been filed in terms of the provisions of
Article 226 of the Constitution of India, is that the non-
applicants/respondents vide NIT No. E-Tender-108 of PWD (R&B),
Division Kargil of 2025-26 dated 25.10.2025, amongst others invited
tenders on percentage BOQ from approved and eligible contractors
registered with the UT of Ladakh, CPWD, Railways and other
State/Central/UT Governments for the work “Construction of Link
Road from Kukstay to Lalung (under CRIF). That he, being possessed
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of the requisite eligibility, submitted his tender against proper receipt.
That the technical bids of all the bidders was opened on the scheduled
date by the duly constituted committee. That the Committee after
technical scrutiny of the relevant documents uploaded as per
NIT/SBD conditions of all the bidders, summarized its process and, on
that basis amongst others declared him as responsive, having complied
with NIT conditions. That having regard to the report of the duly
constituted committee declaring him, amongst others, as responsive,
the Committee recommended for opening of the financial bids of the
responsive bidders. Consequent thereto, the financial bids of the
bidders were opened and a BOQ summary sheet was prepared
indicating the percentage and an amount, on that basis he was declared
L1. That consequent upon being declared as L1, the respondent No. 3,
under and in terms of communication dated 17.12.2025 issued the
Letter of Acceptance, indicating that his bid for Rs. 1328.96 lacs
(excluding GST) has been accepted. That he was accordingly advised
to furnish performance/additional performance security as per amount
indicated within 14 days from the date of issuance of Letter of
Acceptance. That since the subject matter pertained to a contract of
above Rs. 10 Crores therefore, the LoA was required to be approved
by the UT level Contract Committee and, accordingly, all such cases,
including his case was placed before the respondent No. 2. The
Committee approved the award of contract in favour of L1 bidders in
case of other works except that of in his case. That the Committee
declared him as ineligible and directed for issuance of a fresh tender
of the work.
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5. The learned Senior Counsel, during his arguments, inter alia,
contended that the petitioner is aggrieved of communication dated
10.01.2026, in terms whereof, the respondent No. 3 has informed the
respondent No. 4 about the decision of the UT Level Contract
Committee declaring the petitioner ineligible for approving the award
of contract in his favour despite his being declared as L1 and
directing for issuance of a fresh tender for the subject work i.e
“Construction of Link Road for Kukstay to Lalung under CRIF”.
6. He submitted that the Committee has also taken a decision to advise
respondent No. 4 to issue a fresh tender for the subject work. That
consequent to the impugned direction, the respondent No. 4 has issued
a fresh tender notice bearing NIT No: Fresh E-Tender-132 of PWD
(R&B) Division Kargil of 2025-26 dated 16.01.2026. That the
impugned decision is without any authority of law, in asmuch as the
respondent No. 2 is only required to consider the grant of approval in
cases pertaining to allotment of contracts involving amounts more
than Rs. 10.00 Crore. That the respondent No. 2 is not an authority to
determine the technical expertise of the bidder who has been declared
as L1 by the constituted Committee.
7. He further submitted that the issue with regard to determining the
eligibility of a bidder is considered by a duly constituted Committee
vide order No. CE/PW(R&B) 32 of 2024 dated 01.05.2024,
comprising members who are experts in the field. The Committee
considered the technical bid of all the bidders who had participated in
the tender process. That on technical scrutiny of all the relevant
documents as per NIT/SBD conditions, the Committee declared 06
bidders as not responsive and 12 bidders, including the petitioner, as
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responsive and thereto the bid was accepted with a recommendation
for opening of financial bid. That the petitioner thereafter was
declared as L1. As the decision taken by the respondent No. 2 is bereft
of authority, competence and jurisdiction, the impugned decision and
the process initiated thereto including that of issuance of the fresh
tender notice, are required to be quashed by an appropriate writ of this
Court.
8. It is further submitted that the petitioner has been incorporated as a
company limited by shares. The company as on date has two
Directors. One of the Directors, namely Tariq Ahmad Hafiz was a
Director of Hafiz Construction Company Private Limited, a company
incorporated under the Companies Act and in existence since
06.05.2008, and engaged in the business of construction. That the said
Director was actively engaged in the running of the said company. It
was mutually decided by the Directors of the company that the said
Tariq Ahmad Hafiz will take over 1/3rd of the credentials, net worth,
technical experience, turn over as a share and in this regard an
agreement was duly executed on 27th April, 2025. It being so, the
Director aforesaid would carry with him the quantifiable experience to
the other company.
9. The learned counsel further submitted that the said experience was
duly taken note of by the Technical Evaluation Committee, and on
that basis, the petitioner was declared as responsive and eligible. That
even otherwise having regard to the admitted fact that the said
Director has experience, it would be illogical to discount such
experience because the recognized company did not have the
experience in its own name. That it is a well settled position of law
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that the experience of the constituent partner of a firm can be
considered/counted as the experience of the firm. That in this view of
the matter, the decision taken by respondent No. 2 is per se arbitrary,
irrational and having misguided itself about the true legal position.
10. He further submitted that the bid of the petitioner is the lowest for
the work and the decision of declaring him as L1 is also in public
interest. That the bid amount of the petitioner is open and exposed
and as such there are ample chances that the new tender process
would result in a higher bid and in allotment of contract at a higher
rate. That the petitioner carries with it the past experience and has the
equipment’s and the resources at the disposal of the company, so as to
execute the work put to tender. He submitted that the respondent No. 2
has not even considered this aspect of the matter and did not examine
the case in its correct perspective so as to come to the conclusion that
the petitioner does not have the credentials so as to perform the work
to be entrusted.
11. The learned counsel, in support of his contentions, placed reliance on
the judgment of the High Court of Bombay titled “Nandkumar
Infrastructure LLP, through Power of Attorney Holder Mr.
Shamsunder Sjajiram Chhabad vs. Superintendent Engineer and
Others” (2025 SCC Online Bom 2469), relevant Paras 16 to 21 of
which judgment are reproduced for ready reference:
“16. The Petitioner has relied upon judgment of the
Apex Court in New Horizons Limited (supra) in which it is
held in paragraph 23 as under:-
23. Even if it be assumed that the requirement
regarding experience as set out in the advertisement
dated 22-4-1993 inviting tenders is a condition about
eligibility for consideration of the tender, though we
find no basis for the same, the said requirement regarding
experience cannot be construed to mean that the said
6experience should be of the tenderer in his name only. It is
possible to visualise a situation where a person having
past experience has entered into a partnership and the
tender has been submitted in the name of the
partnership firm which may not have any past experience
in its own name. That does not mean that the earlier
experience of one of the partners of the firm cannot be
taken into consideration. Similarly, a company
incorporated under the Companies Act having past
experience may undergo reorganisation as a result of
merger or amalgamation with another company which
may have no such past experience and the tender is
submitted in the name of the reorganised company. It
could not be the purport of the requirement about
experience that the experience of the company which has
merged into the reorganised company cannot be taken
into consideration because the tender has not been
submitted in its name and has been submitted in the name
of the reorganised company which does not have
experience in its name. Conversely there may be a split
in a company and persons looking after a particular
field of the business of the company form a new
company after leaving it. The new company, though
having persons with experience in the field, has no
experience in its name while the original company having
experience in its name lacks persons with experience. The
requirement regarding experience does not mean that the
offer of the original company must be considered because
it has experience in its name though it does not have
experienced persons with it and ignore the offer of the new
company because it does not have experience in its name
though it has persons having experience in the field. While
considering the requirement regarding experience it has
to be borne in mind that the said requirement is
contained in a document inviting offers for a commercial
transaction. The terms and conditions of such a document
have to be construed from the standpoint of a prudent
businessman. When a businessman enters into a contract
whereunder some work is to be performed he seeks to
assure himself about the credentials of the person who is
to be entrusted with the performance of the work. Such
credentials are to be examined from a commercial point of
view which means that if the contract is to be entered with
a company he will look into the background of the
company and the persons who are in control of the same
and their capacity to execute the work. He would go not by
the name of the company but by the persons behind the
company. ……
17.The Division Bench of this Court has also decided the issue of
consideration of experience of partners as the experience of
partnership firms in Sagar Lookouts vs. Maharashtra Housing and
Area Development Authority and others3. After referring to
various judgments of the Apex Court including the judgment in
New Horizons Limited (supra), Maa Nabadurga Construction vs.
Saroj Kumar Jena and of Division Bench of this Court in IMS
Bhatia Transport Contractor vs. Union of India5, this Court has
held in paragraphs 31, 33, 34 and 35 as under :-
31. A coordinate Bench of this Court in IMS Bhatia
Transport Contractor (supra) followed the decisions of the
7Apex Court in New Horizons Limited (supra) and Maa
Nabadurga Construction (supra) and in paragraph 19
observed thus:
“19. It has been held by the Apex Court in the aforesaid
case that the person having past experience enters into
the partnership and the tender is submitted in the name
of partnership firm which may not have any past
experience in its own name. That does not mean that the
earlier experience of one of the partners of the firm
cannot be taken into consideration.
Experience is intangible. It cannot be computed in
monetary terms. The experience is not a property as
contemplated under section 14 of the Partnership Act.”
33.In these facts, let us test if the approach of the
Committee in discarding these documents, in view of its
understanding that the experience of the firm itself is
relevant for consideration and not that of its partner, is
justified. What happens in a situation where the firm
has the requisite experience but the partners fall short
of the experience? Will such firm be held eligible?
There may be a situation where the firm may not have
the experience but the partners who are to execute the
work are experienced. The term ‘bidder’ is not defined
in the RFP.
34……. It is a settled law that a partnership has been
held to be a compendious name for its partners and
that the experience is a human attribute which does not
form part of the property or the assets of the firm in the
usual sense. It is the experience of the persons executing
the work that will have to be considered. This is our
understanding of what Their Lordships observed in New
Horizons Limited (supra).
Looking at the issue from another angle, will a prudent
businessman like MHADB hand over a tender in favour
of a firm of which partners do not have the requisite
experience stipulated? As a prudent businessman, it is of
course best left to MHADB to look after its business
interest and the scope of interference in such decisions
is extremely limited. But to allow MHADB to construe
the term ‘Bidder’ in a literal manner, that it is the firm’s
experience itself will qualify, is something which does
not commend to us. It is here that the observations of
His Lordship Mathew J. in V. Punnan Thomas (supra)
which we have quoted in paragraph 19 of this judgment
assume significance. There is no provision in the RFP
that the Bidder is given a restricted meaning to mean
the firm itself and not the person in charge of it. The
Bidder has to be understood to mean the person in
charge of the firm, though the bid is by or on behalf of
the firm. The notice inviting tender does not preclude
adoption of this course of action. If the contention of
MHADB is to be accepted, then once a bid is by a firm
having experience, irrespective of whether the person in
charge is experienced or not, the firm’s bid will have to
be held eligible for consideration.
18.The Division Bench of Gauhati High Court has also held that
experience of a partner can be treated as experience of the
partnership firm in “Trio Stony Mart vs. Jamal Ahmed and
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others”, the Division Bench has held in paragraph 25 to 29 as
under: –
25. It is a settled proposition that a partnership firm is
not a juristic person. It is an association of persons where
individual identity of the individual partners is recognized.
This means that a partnership firm is a collection of the
partners and nothing else. It is not a legal entity and has
no separate legal existence. It is a mere collective name
for the individuals who are the members of the partnership.
That apart, requirement of the clause is not that financial
soundness certificate has to be of the tendering firm if it is
a partnership firm. All that it says is that a financial
soundness certificate from the concerned Deputy
Commissioner or Sub- Divisional Officer ascertaining the
financial capability to operate the mining lease/contract
should accompany the tender papers.
In New Horizons Ltd. v. Union of India, (1995) 1 SCC
478, Supreme Court was considering evaluation of one of
the eligibility criteria for the tenderers, namely,
‘experience’ by the Tender Evaluation Committee. The
tenderer in that case was a joint venture company. In the
context of that case, Supreme Court held that the
requirement regarding ‘experience’ cannot be construed
to mean that such ‘experience’ should be of the tenderer in
his name only. It was possible to visualize a situation
where a person having past experience had entered into a
partnership and the tender had been submitted in the name
of the partnership firm, which may not have any past
experience in its own name. This would not mean that the
earlier experience of one of the partners of the firm could
not be taken into consideration. Similarly, a company
incorporated under the Companies Act, 1956 having past
experience may undergo reorganization as a result of
merger or amalgamation with another company which
may have no such past experience and the tender is
submitted in the name of the re-organised company. It
cannot be the purport of the requirement that the
‘experience’ of the company which had merged into the re-
organized company cannot be taken into consideration
because tender has not been submitted in its name and has
been submitted in the name of the reorganized company
which does not have ‘experience’ in its name. Conversely,
there may be a split in the company and the persons
looking after a particular field of the business of the
company form a new company after leaving it. The new
company though having persons with ‘experience’ in the
field has no experience in its name while the original
company having ‘experience’ in its name lacks persons
with experience. The requirement regarding ‘experience’
does not mean that the offer of the original company must
be considered because it has ‘experience’ in its name
though it does not have experienced persons with it and
ignore the offer of the new company because it does not
have ‘experience’ in its name though it has persons having
‘experience’ in the field. Supreme Court held that while
considering the requirement regarding ‘experience’, it has
to be borne in mind that the said requirement is contained
in a document inviting offers for a commercial transaction.
Terms and conditions of such a document have to be
construed from the standpoint of a prudent businessman.
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Thereafter, Supreme Court went on to explain the evolving
concept of joint venture.
26. The reasonings given by the Supreme Court in
respect of the eligibility requirement of ‘experience’, in
our considered opinion, would also be applicable in the
case of a financial soundness certificate as required under
clause 12(d) of the sale notice.
27. In Master Marine Services (P.) Ltd. v. Metcalfe &
Hodgkinson (P.) Ltd., (2005) 6 SCC 138, Supreme Court
in the context of the tender conditions requiring the bidder
to have licence to act as Surveyor/Loss Assessor under the
Insurance Act to prequalify, held that tender document did
not say that in a case where a company had made a bid,
the licence to act as Surveyor/Loss Assessor under the
Insurance Act must be in the name of the company itself or
that a licence personally in the name of the Chairman or a
Director of the company would not be treated as a valid
compliance with the requirement of the tender.
25. In the instant case, requirement of clause 12(d) is
that tender papers must be accompanied by a financial
soundness certificate ascertaining the financial capability
to operate the mining lease/contract which is to be
obtained from the concerned Deputy Commissioner/Sub-
Divisional Officer. It nowhere says that the financial
soundness certificate has to be that of a partnership firm if
the tenderer is a partnership firm. We have already noted
that a partnership firm is not a juristic entity and is only an
association of persons. It is a collective name of the
individual partners comprising the partnership. A
partnership firm being not a legal person, the ultimate
liability would be that of the partners. Every partner is
liable for all acts of the partnership firm, jointly as well as
severally. Therefore, having regard to the settled legal
position, a financial soundness certificate of any one of the
partners comprising the partnership, to our mind, would
fulfill the requirement of the aforesaid condition. Whether
the particular tenderer is financially sound or not, the
decision is that of the tendering authority or may be, that of
the higher authorities, including the Appellate Authority
under the Assam Minor Mineral Concession Rules, 2013.
Ordinarily, Court should not substitute its understanding
of financial soundness for that of the administrative
authorities. Of course, in a case of arbitrariness or
unreasonableness or mala fide exercise of power, certainly
court would interfere with such decision but in the facts
and circumstances of the case, interpretation given by the
learned Single Judge to the requirement of clause 12(d) of
the sale notice would not be justified.
19. On the other hand, Mr. Chandurkar has relied upon the
judgment of the Division Bench of the Punjab and Haryana High
Court in A.G. Construction Co. (supra). The case before the
Punjab and Haryana High Court involved a reverse situation
where a proprietary concern M/s. A.G. Construction Co. had
submitted a bid in pursuance of the Tender Notice and it was the
contention of the Petitioner-Proprietor that the experience earned
by him while being a partner of the Partnership Firm-M/s. B.G.
Constructions Co. Bathinda is reckoned as his own experience. It
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is in the light of the above peculiar facts that the Division Bench
of Punjab and Haryana High Court distinguished the judgment
of the Apex Court in New Horizons Limited (supra) by holding
that in each of the illustrations described by the Apex Court an
individual or entity possessed the requisite tangible experience in
its individual capacity which was quantifiable and with which it
could merge itself in another company or enter into partnership
with a firm which lacked the necessary experience. The Division
Bench held in paragraph 25 as under: –
“25. In fact, upon an analysis of the decision in New
Horizons Limited (supra), we are rather of the opinion that
our view finds resonance and support in few of the
observations emphasized by us, while extracting relevant
paragraphs of the judgment. For instance, in each of the
illustrations described by the Supreme Court, an individual
or an entity possessed the requisite tangible experience in
its individual capacity, which was quantifiable (qualitatively
and/or quantitatively), and with which it could merge itself
in another company or enter into a partnership with a firm
which lacked the necessary experience. Since the fact that
such individual or entity actually had the experience was
incontrovertible in these illustrations, the Supreme Court
remarked on how absurd it was to discount such experience
just because the re organized company or the firm which
had submitted the bid did not have that experience in its
name.”
20. In the peculiar factual matrix of the case in A.G.
Construction Co. (supra) the Division Bench of Punjab and
Haryana High Court held that experience in the name of
erstwhile partnership firm in which the Petitioner was a partner
could not be considered as an experience earned by him in its
individual capacity. The judgment is thus clearly
distinguishable and cannot be a reason for taking a different
view than the one enunciated by the Apex Court in New
Horizons Limited and another (supra) as followed by Division
Bench of this Court in Sagar Lookouts (supra).
21. In our view therefore the experience of Proprietor of M/s.
Nandkumar Constructions is required to be taken into
consideration as experience of the Petitioner-LLP for the
purpose of evaluation of Petitioner’s technical eligibility.”
12. Perused the interim application supported with an affidavit. Also
perused the main petition and the copies of documents enclosed with the
same as annexures thereto.
13. List on 23rd February, 2026.
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14. In the meantime, subject to any vacation/modification upon the
consideration of objections/arguments of the other side, the non-
applicants/respondents are directed to revisit the entitlement of the
applicant/petitioner for award of the contract in his favour in respect of the
subject work i.e. “Construction of Link Road from Kukstay to Lalung (under
CRIF) in the light of the afore referred facto-legal scenario of the case, and
to take appropriate consequent action as warranted, with the submission of
an action taken report to the Court before the next date of hearing.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
06.02.2026
Shahid Manzoor