Jharkhand High Court
Nuravi Imports And Exports Private ... vs Central Coalfields Limited Through Its ... on 1 July, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
Neutral Citation No. ( 2025:JHHC:17331-DB )
W.P. (C) No. 2706 of 2025
Nuravi Imports and Exports Private Limited through its
Authorised Representative: Deepak Kumar Pandey, S/o
Ramashish Pandey, aged 29 years, Registered Office: 144,
Durgawati Bhawan, Masterpara, Hirapur, P.O.- Dhanbad
Head Post Office, P.S.- Dhanbad, Dist.- Dhanbad.
... Petitioner
Versus
1. Central Coalfields Limited through its Chairman-cum-
Managing Director, having its Office at: Darbhanga
House, P.O.- Kutchery, P.S.- Kotwali, Dist.- Ranchi.
2. General Manager, Contract Management Cell, CCL,
Darbhanga House, P.O.- Kutchery, P.S.- Kotwali, Dist.-
Ranchi. ... Respondents
----
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
----
For the Petitioner : Mr. Devashish Bharuka, Sr. Adv.
Mr. Manish K. Jha, Sr. Adv.
Mr. Shubhashis Rasik Soren, Adv.
Mr. Abhijeet Kr. Pandey, Adv.
Ms. Neha Mehta, Adv.
Ms. Shobha Gloria Lakra, Adv.
Ms. Mrinalini Adela Tete, Adv.
Ms. Preeti Hembrom, Adv.
Ms. Singi Sharon Demta, Adv.
For the Resp.-CCL : Mr. Amit Kumar Das, Adv.
Mr. Shivam Utkarsh Sahay, Adv.
Mr. Saurav Kumar, Adv.
Mr. Sankalp Goswami, Adv.
For the Intervenor : Mr. Sumeet Gadodia, Adv.
Mr. K. Hari, Adv.
Mr. Ashutosh Agarwal, Adv.
For the Proposed
Intervenor : Mr. Rajiv Ranjan, Sr. Adv.
----
Dated : 01/07/2025
Per Rongon Mukhopadhyay, J. :
I.A. No. 7462 of 2025.
Heard Mr. Rajiv Ranjan, learned senior counsel for the proposed intervenor, Mr. Devashish Bharuka, learned senior counsel for the petitioner and Mr. Amit Kumar Das, learned counsel appearing for the respondent no. 1 and 2- Central Coalfields Limited.
W.P.(C) NO. 2706 OF 2025 1Neutral Citation No. ( 2025:JHHC:17331-DB ) This intervention application has been preferred on behalf of M/s APML-MIL JV, wherein a prayer has been made to include the proposed intervener as a party respondent.
It has been submitted by Mr. Rajiv Ranjan, learned senior counsel for the proposed intervener that the proposed intervener is one of the bidders in the tender floated by Central Coalfields Limited bearing NIT No. CCL/GM(CMC)/A&C/GeM/2024/48 dated 05-12-2024. It has further been submitted that the respondent Central Coalfields Limited had acted in an arbitrary, biased and illegal manner in order to favor the successful bidder and such acts of the respondent CCL is contrary to the settled law that conditions of the tender cannot be tailor made to favor a specific party and exclude all others. On such grounds, a prayer has been made to include the proposed intervener as party respondent in the present writ application.
Mr. Amit Kumar Das, learned counsel appearing for the respondent-CCL has submitted that the tender was floated in December, 2024 and though an opportunity was given to the participants to put forward their objections to the terms and conditions of the tender document, but the proposed intervener had not done so and, in fact, had participated in the bidding and on being unsuccessful, has raised a plea of anomaly at a belated stage.
Since there appears to be a separate cause of action with respect to the prayer made by the proposed intervener, we do not find any reasons to allow this application and consequently, this interlocutory application stands disposed of with a liberty to the proposed intervener to explore other avenues for redressal of its grievance.
I.A. No. 7462 of 2025 stands disposed of.
W.P.(C) NO. 2706 OF 2025 2Neutral Citation No. ( 2025:JHHC:17331-DB ) I.A. No. 6187 of 2025.
Heard Mr. Sumeet Gadodia, learned counsel for the proposed intervener, Mr. Devashish Bharuka, learned senior counsel for the petitioner and Mr. Amit Kumar Das, learned counsel appearing for the respondent CCL.
This application has been preferred by the proposed intervener Caliber (JV) to be included as a party respondent in W.P.(C) No. 2706 of 2025.
Mr. Sumeet Gadodia, learned counsel for the proposed intervener has submitted that the proposed intervener is a joint venture which had participated in the tender and was declared the L-1 bidder. The proposed intervener has deployed plant and machinery and other equipments in the project site and, in such circumstances, therefore, it is a necessary party to the present proceedings.
We have heard the learned senior counsel for the petitioner as well as the respondent-CCL.
Since the proposed intervener is the L-1 bidder and challenge having been made by the petitioner to the rejection of its technical bid, it is necessary that the proposed intervener be also heard. Accordingly, we allow this application and permit the proposed intervenor to be impleaded as party respondent no. 3.
I.A. No. 6187 of the 2025 stands allowed.
W.P.(C) No. 2706 of 2025.
1. Heard Mr. Devashish Bharuka, learned senior counsel for the petitioner, Mr. Amit Kumar Das, learned counsel for the respondent nos. 1 and 2- Central Coalfields Limited and Mr. Sumeet Gadodia, learned counsel appearing for the newly added respondent no. 3.
2. In this writ application, the petitioner has prayed for the following reliefs:
W.P.(C) NO. 2706 OF 2025 3Neutral Citation No. ( 2025:JHHC:17331-DB )
(i) For issuance of an appropriate writ/rule/direction particularly a writ in the nature of certiorari to quash and set aside the Decision at Serial No. 10 under the header - Item No. 2 Technical Evaluation connection with NIT GEM.2024/B/5666492 [Annexure-7] wherein and whereunder the Respondents has wrongly and illegally disqualified the Petitioner from the technical bid without assigning any reason and valid explanation.
(ii) For issuance of an appropriate writ/rule/direction particularly a writ in the nature of mandamus directing the Respondents CCL to declare the Petitioner as technically qualified bidder; And/Or
(iii) Any other appropriate writ(s), order(s) or direction(s) as may be deemed fit and proper and for doing conscionable justice to the petitioner.
3. The factual aspects of the case reveal that M/s Central Coalfields Limited (hereinafter referred to as CCL) issued a tender under NIT No. CCL/GM(CMC)/A&C/GeM/2024/48 for the hiring of HEMM for removal of 413.59 M CuM of overburden (OB) comprising 376.360 M CuM Hard OB, 36.318 M CuM Soft OB and 0.912 M CuM Top Soil. The tender also included the extraction of 233.325 MT coal by surface mining, transportation of coal to Shivpur Siding and surface stockyard under different lead slabs and wagon loading of 139.995 MT of coal at Shivpur Siding at Amrapalli OCP, Amrapalli-Chandragupt Area. The W.P.(C) NO. 2706 OF 2025 4 Neutral Citation No. ( 2025:JHHC:17331-DB ) contract period was 07 years (production period) and 360 days (development period). The petitioner formed a consortium with Coal Mines Associated Private Limited and GSCO Infrastructure Private Limited and participated in the tender. The petitioner is the lead partner through which the bid documents were submitted. In its capacity as lead partner of the joint venture/consortium, the petitioner had executed Memorandum of Understanding (MoU) for providing line of credit with one M/s Barbaric Projects Limited, Raipur for Rs. 75 crores and M/s PRA India Private Limited, Raipur for Rs. 50 crores. The MoUs were executed after confirming the financial viability by conducting due diligence on the balance sheet of the said companies as on 30-11-2024. It has been stated that VK Shaw & Co., Chartered Accountants had issued a Working Capital Certificate to the petitioner, in which it was categorically mentioned that the certificate was based on the available working capital, including line of credit and other financial resources as of 30-11-2024 to ensure that M/s Nuravi Imports and Exports Private Limited had sufficient working capital resources to execute the project and that the lines of credit and other financial resources were determined on the basis of the balance sheet of the investing companies as of 30-11-2024. The petitioner had participated in the bid on 17-01-2025 through GeM portal and, as per the petitioner, all the documents required for the bidding were submitted by the petitioner through GeM portal itself. The respondents had made the following queries to the petitioner;
(i) Work Experience (W.E.) Discrepancy : In BSC, for W.E. at Sl. No. 2, the period is mentioned as 01-04-2023 to 30-03-2024, whereas the submitted W.E. certificate is for 01-04-2023 to 31-03-2024. Similarly, at Serial No. 3, BSC mentions 01-04-2023 to 30-03-2024, while the W.P.(C) NO. 2706 OF 2025 5 Neutral Citation No. ( 2025:JHHC:17331-DB ) submitted certificate is for 01-09-2023 to 31-03- 2024.
(ii) Discrepancy in Working Capital and Access to Line of Credit for M/s Nuravi Imports and Exports (P) Limited: As per CA Vishal Kumar Shaw's, certificate there is a difference in reported working capital and access to financial resources . CCL requested proof of access to lines of credit and availability of unutilized funds, in compliance with Clause 3.1(d) of ATC.
(iii) Annexure IX (Undertaking) was not signed by all partners of the JV.
In response to the queries raised by CCL, all the necessary documents were submitted. The technical bid was opened by the respondents on 24-04-2025 in which the petitioner was disqualified and the said decision has been impugned in this writ application.
4. Mr. Devashish Bharuka, learned senior counsel for the petitioner has referred to Clause 3 of the Additional Terms and Conditions (Instruction to Bidders) document which relates to the eligibility criteria of the bidder and he has put much stress in sub-clause (d) of Clause 3.1, which conditions have been rigorously complied with by the petitioner. Reference has been made to the requirement of documents to be uploaded online and the certificate of a practicing Chartered Accountant with UDIN of working capital and it is the only document which proves that the party concerned has working capital. Mr. Bharuka, learned senior counsel has placed reliance on the Working Capital Certificate issued by VK Shaw & Co. Chartered Accountants having an UDIN and the access to Line of Credit and availability of other financial resources have been demonstrated in the said certificate itself. All the requirements, as per the tender W.P.(C) NO. 2706 OF 2025 6 Neutral Citation No. ( 2025:JHHC:17331-DB ) documents, for participating in the bid had duly been complied with by the petitioner. Despite such facts, a new condition was put forth by the CCL in the form of a query regarding the above noted difference between working capital and access to line of credit and availability of financial resources with the further direction to give a breakup of such availability and also mentioning the details of the availability of unutilized funds. It has been submitted that no proportion was given in the tender document with respect to working capital and access to line of credit and availability of financial resources and this would give a glimpse in the act of the management of CCL in travelling beyond the terms and conditions enumerated in the tender document. Undeterred, the petitioner had duly submitted the necessary reply of the clarification dated 24.02.2025 with details of the Memorandum of Understanding entered into with other companies giving access to the Line of Credit and availability of other financial resources. Mr. Bharuka, learned senior counsel has submitted that despite the petitioner having met the requisite criteria as documented in the tender papers as well as the subsequent conditions which were also fulfilled by the petitioner, but the respondent-CCL, without any valid reasons which would have quantified the disqualification, has ousted the petitioner from participating in the bidding process. Mr. Bharuka has summed up his argument by highlighting the fact that: (a) no reasons have been assigned in the impugned decision of CCL;
(b) there could not have been a query, but even if they have and the details in response to such query having been provided, it was incumbent for the respondent-CCL to have assigned reasons for such decision; (c) the respondent-CCL could not have travelled beyond the documents which were required as per the tender; (d) as per Clause 2.2 of the Additional Terms and Conditions, the discretion of CCL can be exercised only when the W.P.(C) NO. 2706 OF 2025 7 Neutral Citation No. ( 2025:JHHC:17331-DB ) bid is not substantially responsive, but the act of CCL is contrary to its own terms and conditions. Mr. Devashish Bharuka, learned senior counsel for the petitioner, in support of his various contentions, has placed reliance upon Tata Cellular v. Union of India reported in (1994) 6 SCC 651, Banshidhar Construction (P) Limited v. Bharat Coking Co Ltd. reported in (2024) 10 SCC 273, Ramana Dayaram Shetty v. International Airport Authority of India reported in (1979) 3 SCC 489 and Mohinder Singh Gill v. Chief Election Commissioner reported in (1978) 1 SCC 405.
5. Mr. Amit Kumar Das, learned counsel appearing for the respondent-CCL has initially referred to the impugned decision and in context thereof, he has once again taken us through Clause 3.1 (d) which, according to him, forms the crux of the dispute. He has submitted that the initial scheduled date of opening of the tender was 20-12-2024. He has referred to the Working Capital Certificate dated 23-12-2024 giving the details of the available working capital inclusive of lines of credit and availability of other financial resources as on 30-11-2024 by laying stress on the wide discrepancy in the working capital with the access to line of credit and availability of other financial resources. The Working Capital has been shown to be Rs. 1,91,64,000.00/- whereas the access to Line of Credit is Rs. 1,28,00,00,000.00/-. It has been submitted that the Memorandum of Understanding which are three in number and which reflects an agreement to provide access to credit to the petitioner are all subsequent to the date mentioned in the Working Capital Certificate and are contrary to such Certificate. On the opening day of the tender, the petitioner did not have the Working Capital. Reference has been made to Clause 2.2 of the tender document which provides a joint venture/consortium to participate in the bid and there cannot be more than three W.P.(C) NO. 2706 OF 2025 8 Neutral Citation No. ( 2025:JHHC:17331-DB ) members in a joint venture/consortium and though a joint venture/consortium had been formed by the petitioner being the lead member, but the Memorandum of Understandings reveal about a clause titled "Profit sharing @ 3% of the net share" and inducting new partners are contrary to the spirit of the terms and conditions of the tender document. Mr. Das has also submitted that the present writ application is not maintainable for want of necessary parties as though the petitioner claims itself to be the lead member of the joint venture, but if the petitioner was the successful bidder, the agreement would have to be entered into by all sides. The petitioner having itself violated the requirements as per the tender document, it cannot be permitted to take recourse to the plea that appropriate reasons have not been assigned in the decision disqualifying the petitioner.
6. In reply, Mr. Devashish Bharuka, learned senior counsel for the petitioner has reiterated his earlier stance that no grounds for disqualification of the petitioner have been stated in the impugned decision. In fact, new grounds have been raised canvassing support for the impugned decision. He has referred to Section 4(1)(d) of the Right to Information Act wherein it specifies that every public authority has a bounden obligation to spell out the reasons when a decision has been taken. The Working Capital Certificate of the Chartered Accountant has not been questioned earlier. The induction of new partners in terms of the Memorandum of Understanding is also a new ground taken by the learned counsel for the respondent-CCL, but such profit sharing cannot elevate the status of the said companies to be a member of the joint venture. The argument of the learned counsel for the respondent-CCL is not centered around any allegation of malafide on the part of the petitioner. The joint venture agreement demarcates the role of the petitioner as a lead partner as at Clause 2 of the said agreement which amply W.P.(C) NO. 2706 OF 2025 9 Neutral Citation No. ( 2025:JHHC:17331-DB ) demonstrates the authority of the petitioner to prefer the present writ application. Mr. Bharuka has also referred to Clause 16 of the Additional Terms and Conditions which ratifies the rights and obligations of the bidder in case the deadline for submission of the bid is extended to a new deadline. The Working Capital Certificate of the Chartered Accountant is dated 23-12-2024 and the Memorandum of Understandings are prior to the said date. Based on the propositions noted above, Mr. Bharuka, learned senior counsel has prayed that the impugned decision be quashed and set aside and this writ application be allowed.
7. Mr. Sumeet Gadodia, learned counsel appearing for the newly added respondent no. 3 has adopted the argument advanced by the learned counsel for the respondent-CCL and in furtherance to such cause has referred to the case of Tata Motors Ltd. v. Brihan Mumbai Electric Supply and Transport Undertaking reported in (2023) 19 SCC 1, wherein it has been held as follows:
"57. As observed by this Court in Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517], that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment W.P.(C) NO. 2706 OF 2025 10 Neutral Citation No. ( 2025:JHHC:17331-DB ) or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes."
8. We have given our anxious consideration to the submissions advanced by the learned counsel for the respective parties and have also perused the various affidavits filed by them.
9. Mr. Amit Kumar Das, learned counsel for the respondent- CCL has raised a preliminary objection to the effect that the petitioner could not have preferred the writ application solely being a lead member of the joint venture without adding the other members. He has also submitted that the joint venture is a juristic person which should have filed the writ application. Reference has been made to the case of Gammon India Ltd v. Commissioner of Customs reported in (2011) 12 SCC 499, wherein it has been held as follows:
"28. In short, New Horizons recognises a joint venture to be a legal entity in the nature of a partnership of the constituent companies. Thus, the necessary corollary flowing from the decision in New Horizons1, wherein the partnership concept in relation to a joint venture has been accepted, would be that M/s Gammon-
Atlanta JV, the joint venture could be treated as a "legal entity", with the character of a partnership in which Gammon was one of the constituents. In that view of the matter, the next question for consideration is:
whether being a legal entity i.e. a juridical person, the joint venture is also a "person"W.P.(C) NO. 2706 OF 2025 11
Neutral Citation No. ( 2025:JHHC:17331-DB ) for the purpose of Condition 38 of the exemption notification, stipulating that the goods should be imported by "a person" who had been awarded a contract for construction of goods in India by NHAI?
29. In support of his submission that the joint venture is a "person" as contemplated in the exemption notification, the learned counsel for Gammon had relied on the definition of the word "person" as given in Para 3.37 of the Export and Import Policy for the year 1997-2002. It reads thus:
"3.37. 'Person' includes an individual, firm, society, company, corporation or any other legal person."
10. We may refer to Clause 2 of the joint venture agreement which reads as under:
"2) LEAD PARTNER M/s. Nuravi Imports and Exports Private Limited shall be the Lead Partner of the Joint Venture/Consortium and is In-charge for performing the contract management. M/s. Nuravi Imports and Exports Private Limited shall be attorney of the parties duly authorized to incur liabilities and receive instructions for and on behalf of any and all partners in the Joint Venture/Consortium and also all the partners of the Joint Venture/Consortium shall be jointly and severally liable during the bidding process and for the execution of the contract as per contract terms with the employer. All Joint Venture/Consortium Partners M/s Nuravi Imports and Exports (P) Ltd.W.P.(C) NO. 2706 OF 2025 12
Neutral Citation No. ( 2025:JHHC:17331-DB ) and M/s Coal Mines Associated Traders (P) Ltd and M/s GSCO Infrastructure (P) Ltd nominate and authorize Shri Ravi Ranjan Choubey (MANAGING DIRECTOR) of M/s. Nuravi Imports and Exports Private Limited to sign all letters, correspondence, papers & certificates and to submit the Pre-qualification Application /Bid documents for and on behalf of the Joint Venture/Consortium."
11. The contents of the aforesaid clause would bestow upon the petitioner, an authorization to take all steps with respect to the bidding process including pre-qualification and post- qualification formalities. Such authorization of the petitioner is an account of it being the lead member of the joint venture through which the bid documents were submitted. In the background of such scenario, the petitioner was well entrenched to prefer the present writ application solely for redressal of its grievance. The submission of Mr. Das, learned counsel for the respondent-CCL in such circumstances is, therefore, negated.
12. The Additional Terms and Conditions of the tender document relate to Instruction to Bidders and the nucleus of the disputation revolves around Clause 3.1(d). Clause (3) deals with eligibility criteria of the bidder and clause 3.1(d) reads as follows:
"d) Working Capital: Evidence of possessing adequate working capital (at least 20% of the "Annualized value or Estimated value whichever is less" of this work) inclusive of access to lines of credit and availability of other financial resources to meet the requirement. The Bidder should possess the working capital within three months prior to the initial scheduled date of opening of tender.
[In case of JV/Consortium, the lead member shall have to possess at least 50% share and all other members shall W.P.(C) NO. 2706 OF 2025 13 Neutral Citation No. ( 2025:JHHC:17331-DB ) have to possess at least 25% share in the Working Capital and the working capital of the individual members of the JV/Consortium will be added together].
Data to be furnished by Bidder in Bid Submission Confirmation Sheet:
i. Amount of available working capital inclusive of lines of credit and availability of other financial resources. ii. Date on which the Bidder possesses the required working capital.
iii. Name of the Chartered Accountant (CA). iv. Membership Number of CA who certifies the Bidder's working capital on a particular date.
v. Date of Issue of Certificate.
Technical evaluation by the Tender Committee:
i. The Tender Committee shall check whether the date on which the bidder possesses the required working capital is within 3 months prior to the initial scheduled date of opening of tender., ii. The value of working capital as certified by the CA is greater than or equal to the minimum requirement. Note: The proportion of required Working Capital possessed by Lead Member and other members shall have to be evaluated offline by the Tender Committee. Supporting Documents to be uploaded online: Certificate with UDIN of Working Capital issued by a Practicing Chartered Accountant having a membership number with Institute of Chartered Accountants of India containing the information as furnished by Bidder through BSC.
Note: A Sample Checklist for Working Capital Certificate is as follows:
THIS IS A SAMPLE CHECKLIST FOR WORKING CAPITAL W.P.(C) NO. 2706 OF 2025 14 Neutral Citation No. ( 2025:JHHC:17331-DB ) CERTIFICATE. (FOR REFERENCE PURPOSE ONLY). The Working Capital Certificate issued by CA should contain the following important parameters in line with the information furnished by the bidder in BSC:
1. Name of Bidder:
2. PAN No.:
3. Amount of Available Working Capital inclusive of lines of credit and availability of other financial resources:
Sl No. Particulars Value in Rs.
(1) (2) (3)
1 Current Asset (CA)
2 Current Liability (CL)
3 Working Capital (1-2)
4 Access to lines of credit and
availability of other financial
resources
5 Working Capital inclusive of
Access to lines of credit and
availability of other financial
resources (3+4)
Note: For eligibility Amount should be at least 20% of the Annualized value or Estimated value whichever is less.
4. Date on which bidder possess working capital: (Should be within 3 months prior to the date of opening of tender).
5. Name of Chartered Accountant (CA) with Membership No.:
6. Date of issue of Certificate. (Should be within 3 months prior to the date of opening of tender).
7. Certificate should be issued by Practicing CA (having Membership No.) containing UDIN No. NOTE:
1. Access to line of Credit and availability of other financial resources shall imply the Net availability of Funds* towards Working Capital, as on the date on which bidder possesses W.P.(C) NO. 2706 OF 2025 15 Neutral Citation No. ( 2025:JHHC:17331-DB ) working capital.
*The net availability of funds is the availability of unutilized fund.
2. In case of Joint Venture/Consortium, Bidder needs to submit the Working Capital Certificate of individual Partners and the requirement of Working Capital shall be met as per following proportion:
i. The lead member shall have to possess at least 50% share in the required Working Capital in order to qualify in this tender.
ii. All other members shall have to possess at least 25% share in the required Working Capital, in order to qualify in this tender."
13. The note to the clause of technical evaluation by the Tender Committee gives a discretion to the Tender Committee to evaluate the proportion of required Working Capital possessed by the lead member. The document in support of the Working Capital of the party is to be furnished by a practicing Chartered Accountant having an UDIN Number. The Working Capital Certificate was issued for and on behalf of VK Shaw & Co. dated 23-12-2024 which detailed the amount of available working capital inclusive of Lines of Credit and availability of other financial resources as of 30-11-2024 and the same reads as under:
S No. Particulars Amount in Rs.
1 Current Assets 5,56,96,000.00
2 Current Liabilities 3,65,32,000.00
3 Working Capital (1-2) 1,91,64,000.00
4 Access to Line of Credit and availability 128,00,00,000.00
of other financial resources
5 Working capital inclusive of Access to 129,91,64,000.00
Line of Credit and availability of other financial resources (3+4) W.P.(C) NO. 2706 OF 2025 16 Neutral Citation No. ( 2025:JHHC:17331-DB )
14. The aforesaid table would indicate that the Working Capital is to the tune of Rs. 1,91,64,000/-, while the access to Line of Credit and availability of other financial resources is Rs. 128,00,00,000/-. The disqualification of the petitioner is strongly related to the Working Capital furnished by the petitioner as it reads "The submitted Working Capital is not as per requirement of bid document. Hence, you do not fulfil the eligibility criteria as per Clause 3.1(d) of ATC of bid document".
At this juncture, we may refer to the Memorandum of Understanding which relates to access to Lines of Credit and availability of other financial resources. One Memorandum of Understanding is between the petitioner (first party) and M/s Barbrik Project Limited (second party) which is dated 21-12- 2024 in which the second party had agreed to invest a sum of Rs. 75 crores in the first party upon the successful award of the tender to the joint venture. The second Memorandum of Understanding is between the petitioner (first party) and M/s GKR Infracon (India) Private Limited (second party), wherein the second party had agreed to invest in the first party Rs. 30 crores. This Memorandum of Understanding is dated 23-12-2024. The third Memorandum of Understanding is dated 21-12-2024 executed between the petitioner (first party) and M/s PRA India (P) Limited (second party) in which the second party has agreed to invest Rs. 50 crores in the first party. The existence of the Line of Credit and availability of other financial resources came into being on the dates when the Memorandum of Understandings were entered into and was much later to the availability of such funds as depicted in the Working Capital Certificate issued on 23-12-2024. There also appears to be an agreement for profit sharing with these three companies at the rate of 3% share of the net profit generated from the execution of the contract. The joint venture comprised of the petitioner as the W.P.(C) NO. 2706 OF 2025 17 Neutral Citation No. ( 2025:JHHC:17331-DB ) lead member and Coal Mines Associated Private Limited and GSCO Infrastructure Private Limited as the other members. Clause 2.2 of the Additional Terms and Conditions feature a joint venture/consortium as eligible bidders and the same reads as under:
"2.2. Joint Venture (JV)/Consortium: Two or three Companies/Contractors may jointly undertake contract(s). Each entity will be jointly and severally responsible for completing the task as per the contract. Joint Venture/Consortium details:
Name of all Members of a JV/Consortium (not more than 3):
1. Lead Member (minimum participation share - 50%)
2. Member (minimum participation share-20%)
3. Member (minimum participation share - 20%) Joint Venture/Consortium must comply the following requirements:
i. The JV/Consortium must enroll in the name of the Lead Partner on behalf of JV/Consortium for Bid submission on GeM Portal However, the JV/Consortium has to register its name in GeM portal by obtaining all requisite Legal Documents (PAN, GST etc) in the name of JV/Consortium before execution of the Agreement. ii. The qualifying criteria parameter e.g. experience, financial resources (of the relevant period) and the equipment/fleet strength of the individual member of the JV/Consortium will be added together and the total criteria should not be less than as spelt out in qualifying/eligibility criteria as specified in Additional Terms and Conditions/Bid document. However, the required Working Capital shall be met by individual members of JV/Consortium as spelt out in the relevant Clause.W.P.(C) NO. 2706 OF 2025 18
Neutral Citation No. ( 2025:JHHC:17331-DB ) iii. The formation of JV/Consortium or change in the JV/Consortium character/members after submission of the bid is not permitted.
iv. The bid, and in case of a successful bid the agreement, shall be signed so as to legally bind all members jointly and severally and any bid shall be submitted with a copy of the JV/Consortium Agreement providing the joint and several liabilities with respect to the contract. v. The pre-qualification of a JV/Consortium does not necessarily pre-qualify any of its member individually or as a member in any other JV/Consortium. In case of dissolution of a JV/Consortium, each one of the constituent firms may pre-qualify if they meet all the pre-qualification requirements, subject to written approval of the employer.
vi. The bid submission must include documentary evidence to the relationship between JV/Consortium members in the form of JV/Consortium Agreement to legally bind all partners jointly and severally for the proposed agreement which should set out the principles for the constitution, operation, responsibilities regarding work and financial arrangements, participation (percentage share in the total) and liabilities (joint and several) in respect of each and all of the firms in the JV/Consortium. Such JV/Consortium Agreement must evidence the commitment of the parties to bid for the facilities applied for (if pre-qualified) and to execute the contract for the facilities if their bid is successful.
vii. One of the members shall be nominated as 'In-charge' of the contract and shall be designated as Lead Partner. This authorization shall be evidenced by submitting W.P.(C) NO. 2706 OF 2025 19 Neutral Citation No. ( 2025:JHHC:17331-DB ) with the bid a Power of Attorney signed by legally authorized signatories of all the members (This is a part of JV/Consortium Agreement Format) All the partners of a JV/Consortium may together authorize the Lead Partner to submit the bid on behalf of the JV/Consortium, along with an undertaking that in case of a successful bid, the work shall be executed by the JV/Consortium as per contract terms of the bid document.
Note: This authorization must be a part of the JV/Consortium agreement if the Bid is submitted by the lead partner on behalf of the JV/Consortium. viii. The JV/Consortium must provide that the Lead Member shall be authorized to incur liabilities and receive instructions for and on behalf of any and all members of the JV/Consortium and the entire execution of the contract shall be done with active participation of the Lead Member.
ix. The contract agreement should be signed by each
JV/Consortium members. Subsequent
declarations/letters/documents shall be signed by lead member authorized to sign on behalf of the JV/Consortium or authorized signatory on behalf of JV/Consortium.
x. The bid should be either physically signed or digitally signed by the bidder or his Authorized representative for submission of Bid.
xi. An entity can be a member in only one JV/Consortium.
Bid submitted by JVs/Consortium/Lead Partner, consisting of the common entities as member will be rejected.
xii. The JV/Consortium agreement may specify the share W.P.(C) NO. 2706 OF 2025 20 Neutral Citation No. ( 2025:JHHC:17331-DB ) of each individual member for the purpose of execution of this contract. This is required only for the sole purpose of apportioning the value of the contract to that extent to individual member for subsequent submission in other bids if he intends to do so for the purpose of the qualification in that Bid.
xiii. The earnest money / bids security can be submitted by the Joint Venture/Consortium or one or more partners of the Joint Venture/Consortium.
xiv. The JV/Consortium agreement must specifically state that it is valid for the project for which bidding is done. If JV/Consortium breaks up midway before award of work and during bid validity period bid will be rejected. If JV/Consortium breaks up midway before award of work and during bid validity/after award of work/during pendency of contract, in addition to normal penalties as per provision of bid document, all the members of the JV/Consortium shall be debarred from participating in future bids for a minimum period of 12 months.
xv. JV/Consortium agreement shall be registered in accordance with law so as to be legally valid and binding on the members before making any payment. Note: If the work is awarded to a JV/Consortium firm, they will register the JV/Consortium agreement under Registration Act in accordance with law. xvi. JV/Consortium shall open a bank account in the name of JV/Consortium and all payments due to the JV/Consortium shall be credited by employer to that account only. To facilitate statutory deductions all statutory documents like PAN, GST registration etc. shall be submitted by JV/Consortium before making W.P.(C) NO. 2706 OF 2025 21 Neutral Citation No. ( 2025:JHHC:17331-DB ) any payment.
xvii. If a Bidder participates as Joint Venture (JV)/Consortium, the benefits as per Public Procurement Policy for MSES Order-2012 shall not be applicable for them xviii. If a JV/Consortium participated through Lead Partner of JV/Consortium on GeM portal, the provision of EMD Exemption (Considering the Turnover of Lead Partner of JV/Consortium etc.) shall not be applicable for them."
15. What can be gathered from the above is that there cannot be more than three members in a joint venture/consortium to be eligible to participate in the tender process. The participation of the joint venture, of which the petitioner is the lead member, was in conformity with Clause 2.2 of the Additional Terms and Conditions, but while entering into separate Memorandum of Understandings with three other companies in order to secure Line of Credit and availability of other financial resources, a profit-sharing clause has been inserted which is an indication about the ancillary induction of members in the joint venture. The same would be in conflict with the object and spirit of Clause 2.2 of the Additional Terms and Conditions.
16. Both the learned counsels have submitted before us various authorities on the subject at hand which would effectively assist us in deciding the issue.
17. In Tata Cellular v. Union of India reported in (1994) 6 SCC 651, it has been held as follows:
"77. The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law, W.P.(C) NO. 2706 OF 2025 22 Neutral Citation No. ( 2025:JHHC:17331-DB )
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasona-
-bleness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time.
As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention"
18. Mr. Bharuka, learned senior counsel for the petitioner has relied upon the aforesaid judgment to emphasize his contention W.P.(C) NO. 2706 OF 2025 23 Neutral Citation No. ( 2025:JHHC:17331-DB ) that the impugned decision itself speaks of arbitrariness and bias and the questions formulated for arriving at a just decision does not, in the present case, give a negative response and, in fact, bolsters the claim of the petitioner. Reference has also been made to the case of Banshidhar Construction (P) Limited v. Bharat Coking Co Ltd. reported in (2024) 10 SCC 273, where once again the Hon'ble Supreme Court has cautioned against interference in contractual matters unless arbitrariness, bias or malafide is shown to have been resorted to during the bidding process. The relevant paragraphs reads as thus:
"28. There cannot be any disagreement to the legal proposition propounded in a catena of decisions of this Court relied upon by the learned counsel for the respondents to the effect that the Court does not sit as a court of appeal in the matter of award of contracts and it merely reviews the manner in which the decision was made; and that the Government and its instrumentalities must have a freedom of entering into the contracts. However, it is equally well-settled that the decision of the Government/its instrumentalities must be free from arbitrariness and must not be affected by any bias or actuated by mala fides.
29. Government bodies being public authorities are expected to uphold fairness, equality and public interest even while dealing with contractual matters. Right to equality under Article 14 abhors arbitrariness. Public authorities have to ensure that no bias, favouritism or arbitrariness are shown during the bidding process and that the entire bidding process is carried out in absolutely W.P.(C) NO. 2706 OF 2025 24 Neutral Citation No. ( 2025:JHHC:17331-DB ) transparent manner.
34. In Jagdish Mandal v. State of Orissa, this Court after discussing number of judgments laid down two tests to determine the extent of judicial interference in tender matters. They are : (SCC pp. 531-32, para 22) "22. ... (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
or Whether the process adopted or decision made is so arbitrary and irrational that the court can say: 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached;'
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
19. If the petitioner had strictly followed the terms and W.P.(C) NO. 2706 OF 2025 25 Neutral Citation No. ( 2025:JHHC:17331-DB ) conditions of the tender document, the respondent-CCL is equally responsible to follow such terms and conditions which are professed by it. Instances have already been underscored by Mr. Bharuka specifically placing reliance to Clause 3.1(d) of the Additional Terms and Conditions of the bid with respect to the said proposition and in support thereof, he has referred to the case of Ramana Dayaram Shetty v. International Airport Authority of India reported in (1979) 3 SCC 489, which reads as under:
"10. Now, there can be no doubt that what para (1) of the notice prescribed was a condition of eligibility which was required to be satisfied by every person submitting a tender. The condition of eligibility was that the person submitting a tender must be conducting or running a registered IInd Class hotel or restaurant and he must have at least 5 years' experience as such and if he did not satisfy this condition of eligibility, his tender would not be eligible for consideration. This was the standard or norm of eligibility laid down by Respondent 1 and since the Respondents 4 did not satisfy this standard or norm, it was not competent to Respondent 1 to entertain the tender of Respondents 4. It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr Justice Frankfurter in Viteralli v. Saton where the learned Judge said:
"An executive agency must be rigorously W.P.(C) NO. 2706 OF 2025 26 Neutral Citation No. ( 2025:JHHC:17331-DB ) held to the standards by which it professes its action to be judged .... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed .... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword."
This Court accepted the rule as valid and applicable in India in A.S. Ahluwalia v. Punjab and in subsequent decision given in Sukhdev v. Bhagatram, Mathew, J., quoted the above- referred observations of Mr. Justice Frankfurter with approval. It may be noted that this rule, though supportable also as an emanation from Article 14, does not rest merely on that article. It has an independent existence apart from Article
14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority. If we turn to the judgment of Mr. Justice Frankfurter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution, but evolved it purely as a rule of administrative law. Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pp. 540-41 in Prof Wade's "Administrative Law", 4th Edn. There is W.P.(C) NO. 2706 OF 2025 27 Neutral Citation No. ( 2025:JHHC:17331-DB ) no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law. Today with tremendous expansion of welfare and social service functions, increasing control of material and economic resources and large-scale assumption of industrial and commercial activities by the State, the power of the executive Government to affect the lives of the people is steadily growing. The attainment of socio-economic justice being a conscious end of State policy, there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with State power-holders. This renders it necessary to structure and restrict the power of the executive Government so as to prevent its arbitrary application or exercise. Whatever be the concept of the Rule of Law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the definition given by Hayek in his "Road to Serfdom" and "Constitution of Liberty" or the exposition set forth by Harry Jones in his "The Rule of Law and the Welfare State", there is as pointed out by Mathew, J., in his article on "The Welfare State, Rule of Law and Natural Justice" in "Democracy, Equality and Freedom"* "substantial agreement in juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found". It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any W.P.(C) NO. 2706 OF 2025 28 Neutral Citation No. ( 2025:JHHC:17331-DB ) of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege."
20. The respondent-CCL has not given any reasons for disqualification of the bid of the petitioner and in the counter affidavit as well as in the submissions advanced by the learned counsel for CCL, an effort has been made to supplement the reasons which are not permissible in law and such issue has already been laid to rest in the case of Mohinder Singh Gill v. Chief Election Commissioner reported in (1978) 1 SCC 405. Mr. Bharuka, learned senior counsel has placed reliance on para 8 which reads thus:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given W.P.(C) NO. 2706 OF 2025 29 Neutral Citation No. ( 2025:JHHC:17331-DB ) by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older."
21. Mr. Amit Kumar Das, learned counsel appearing for the respondent-CCL has referred to the case of Michigan Rubber (India) Ltd. V. State of Karnataka reported in (2012) 8 SCC 216, wherein it has been held as follows:
"23. From the above decisions, the following principles emerge:
(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play.
These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) Fixation of a value of the tender is W.P.(C) NO. 2706 OF 2025 30 Neutral Citation No. ( 2025:JHHC:17331-DB ) entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited;
(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;
(d) 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; and
(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government.
W.P.(C) NO. 2706 OF 2025 31Neutral Citation No. ( 2025:JHHC:17331-DB )
35. As observed earlier, the Court would not normally interfere with the policy decision and in matters challenging the award of contract by the State or public authorities. In view of the above, the appellant has failed to establish that the same was contrary to public interest and beyond the pale of discrimination or unreasonable. We are satisfied that to have the best of the equipment for the vehicles, which ply on road carrying passengers, the 2nd respondent thought it fit that the criteria for applying for tender for procuring tyres should be at a high standard and thought it fit that only those manufacturers who satisfy the eligibility criteria should be permitted to participate in the tender. As noted in various decisions, the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. The courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. In the case on hand, we have already noted that taking into account various aspects including the safety of the passengers and public interest, CMG consisting of experienced persons, revised the tender conditions. We are satisfied that the said Committee had discussed the subject in detail and for specifying these two conditions regarding pre- qualification criteria and the evaluation criteria. On perusal of all the materials, we are satisfied W.P.(C) NO. 2706 OF 2025 32 Neutral Citation No. ( 2025:JHHC:17331-DB ) that the impugned conditions do not, in any way, could be classified as arbitrary, discriminatory or mala fide."
22. In Ratnagiri Gas and Power (P) Limited v. RDS Projects Ltd. reported in (2013) 1 SCC 524 it has been held as follows:
"26. The legal position in this regard is fairly well settled by a long line of decisions of this Court. We may briefly refer to only some of them:
26.1. In State of Bihar v. P.P. Sharma, this Court summed up the law on the subject in the following words: (SCC p. 260, paras 50-51) "50. 'Mala fides' means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose.
The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely, (i) W.P.(C) NO. 2706 OF 2025 33 Neutral Citation No. ( 2025:JHHC:17331-DB ) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.
51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand."
26.2. We may also refer to the decision of this Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd. where the Court declared that allegations of mala fides need proof of high degree and that an administrative action is presumed to be bona fide unless the contrary is satisfactorily established. The Court observed: (SCC p. 790, para 56) "56. ... It is well settled that the burden of proving mala fide is on the person making the allegations and the burden is 'very heavy'. (Vide E.P. Royappa v.
State of T.N.) There is every W.P.(C) NO. 2706 OF 2025 34 Neutral Citation No. ( 2025:JHHC:17331-DB ) presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa v. State of Maharashtra (SCC p. 802, para 2): 'It (mala fide) is the last refuge of a losing litigant.'""
23. Furthering the case of the respondent-CCL, Mr. Das, learned counsel has submitted that the scope of judicial review of a decision-making process regarding contracts is limited and the same view has been reiterated by the Hon'ble Supreme Court time and again and he has made reference to the case of Municipal Corporation, Ujjain v. BVG India Limited reported in (2018) 5 SCC 462 and the relevant paragraph is quoted hereinunder:
"45. Evaluating tenders and awarding contracts are essentially commercial transactions/ contracts. If the decision relating to award of contract is in public interest, the courts will not, in exercise of the power of judicial review, interfere even if a procedural aberration or error in awarding the contract is made out. The power of judicial review will not be permitted to be invoked to protect private interest by ignoring public interest. Attempts by unsuccessful bidders with an artificial grievance and to get the purpose W.P.(C) NO. 2706 OF 2025 35 Neutral Citation No. ( 2025:JHHC:17331-DB ) defeated by approaching the court on some technical and procedural lapses, should be handled by courts with firmness. The exercise of the power of judicial review should be avoided if there is no irrationality or arbitrariness. In the matter on hand, we do not find any illegality, arbitrariness, irrationality or unreasonableness on the part of the expert body while in action. So also, we do not find any bias or mala fides either on the part of the corporation or on the part of the technical expert while taking the decision. Moreover, the decision is taken keeping in mind the public interest and the work experience of the successful bidder.
64. Thus, the questions to be decided in this appeal are answered as follows:
64.1. Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder; 64.2. A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any third party for its qualification.
64.3. It is not open to the court to independently evaluate the technical bids W.P.(C) NO. 2706 OF 2025 36 Neutral Citation No. ( 2025:JHHC:17331-DB ) and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the court ordinarily should exercise judicial restraint."
24. In Uflex Limited v. Government of Tamil Nadu reported in (2022) 1 SCC 165, it has been held as follows:
"42. We must begin by noticing that we are examining the case, as already stated above, on the parameters discussed at the inception. In commercial tender matters there is obviously an aspect of commercial competitiveness. For every succeeding party who gets a tender there may be a couple or more parties who are not awarded the tender as there can be only one L-1. The question is should the judicial process be resorted to for downplaying the freedom which a tendering party has, merely because it is a State or a public authority, making the said process even more cumbersome. We have already noted that element of transparency is always required in such tenders because of the nature of economic activity carried on by the State, but the contours under which they are to be examined are restricted as set out in Tata Cellular and other cases. The objective is not to make the Court an appellate authority for scrutinising as to whom the tender should be awarded. Economics must be permitted to play its role for which the tendering authority W.P.(C) NO. 2706 OF 2025 37 Neutral Citation No. ( 2025:JHHC:17331-DB ) knows best as to what is suited in terms of technology and price for them."
25. Any contractual exercise undertaken by a "State" should tread on the path of transparency and it should not reflect arbitrariness, bias, unreasonableness and malafide. Time and again, the Apex Court has laid down the contours for scrutiny of the decision-making process and judicial review in contractual matters have a very restricted corridor to trudge.
26. The factual aspects of the case have already been discussed at length by us and what we could congregate is that Clause 3.1(d) and 2.2 of the Additional Terms and Conditions have not been rigorously adhered to by the petitioner, though the reasons for disqualification have been restricted to the eligibility criteria as at Clause 3.1(d). The Working Capital Certificate submitted by the Chartered Accountant in tabular form as per the bidding document is the bone of contention. Learned senior counsel for the petitioner has confronted such reasons by accentuating the absence of any proportion of Working Capital and Line of Credit and availability of other financial resources in the terms and conditions of the tender, but at the same time, what appears to be glaring is the almost negligible amount of working capital put forward by the joint venture. The Working Capital Certificate of the Chartered Accountant also is an ambiguous document, as though it mentions about the Line of Credit and availability of other financial resources as on 30-11-2024 but the Memorandum of Understandings, as we have pointed out, are all executed post 30-11-2024. The other factor which we have noted are acceptance to the submission of the learned counsel for the respondent-CCL of induction of new members in the joint venture in excess of two members which was initially decided upon when the joint venture had come into existence, though such induction of members who have a share in the profit has W.P.(C) NO. 2706 OF 2025 38 Neutral Citation No. ( 2025:JHHC:17331-DB ) been done in a camouflaged manner. This clearly was contrary to the demands of Clause 2.2 of the Additional Terms and Conditions. Though, the violations relating to Clause 3.1(d) and 2.2 of the Additional Terms and Conditions have been pointed out by the respondent-CCL and opposed by Mr. Bharuka, learned senior counsel on account of there being an attempt to supplement the original reasons, but what we find is that the said grounds were not non-existent but were ingrained in the documents submitted by the petitioner and such factors can be taken into consideration.
27. The entire exercise adopted by the respondent-CCL in the tender process does not speak of any unreasonableness or arbitrariness so far as the petitioner is concerned and the impugned decision of disqualification is on a proper appreciation and ascertainment of the factual aspects and we, therefore, in view of the narrative enumerated hereinabove, are not inclined to accede to the prayer of the writ petitioner and consequently, this writ application stands dismissed.
28. Pending I.A.s, if any, stands closed.
(RONGON MUKHOPADHYAY, J.) (AMBUJ NATH, J.) Jharkhand High Court, Ranchi Dated the 1st Day of July, 2025 Preet/N.A.F.R. W.P.(C) NO. 2706 OF 2025 39