Andhra Pradesh High Court - Amravati
Chaitanya Jyothi Social Welfare ... vs The State Of Andhra Pradesh on 6 December, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION No.16377 OF 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, for issue of Writ of Certiorari, questioning the withdrawal of work order vide proceedings in Rc.No.M1/1371/2019 dated 12.10.2019 as illegal, unilateral, absurd, colourable, malafide, devoid of jurisdiction and consequently allow the writ petitioner to continue his contract work as per the proceedings of the third respondent in Rc.No.M1/1371/2019 dated 22.09.2019.
The petitioner is a registered society known as M/s. Chaitanya Jyothi Social Welfare Society, bearing Registration No.218/2019 with an avowed object of rendering services and gained experience in Housekeeping Mechanized Sanitation and Sweeping, providing services to various prestigious organizations and government organizations since, 2003. In pursuance of the tender Notification No.02/SDMSD/2019-20 dated 31.08.2019 for maintenance of Housekeeping Mechanized Sanitation and Sweeping work in third respondent Devasthanam, Technical Bid was opened on 13.09.2019 wherein the writ petitioner became the lowest bidder and awarded work for supply of manpower for housekeeping to the third respondent Devasthanam, as per proceedings of the third respondent in Rc.No.M1/1371/2019 dated 22.09.2019 and the period of contract is with effect from 23.09.2019 to 31.03.2021.
On receipt of work order, the petitioner started work in the third respondent Devasthanam by employing its men and material 2 MSM,J W.P.No.16377 of 2019 from 23.09.2019 and also furnished bank guarantee to the third respondent and is rendering service as per the terms of proceedings of the third respondent. While so, at the behest of political influence, the third respondent Devasthanam has issued show cause notice proceedings in Rc.No.M1/1371/2019 dated 25.09.2019 calling for explanation on the feigned ground that the petitioner has suppressed a fact of his termination by another department namely Government General Hospital, Guntur, as to why the petitioner's contract service should not be terminated. An explanation was submitted by this petitioner within the time specified and in the light of the alleged non-cooperation of the hospital authorities, failed to disburse payments, addressed a representation on 26.05.2015, the writ petitioner itself sought for withdrawal of its service and accordingly, termination proceedings were issued on 31.08.2015, on some other frivolous grounds. In fact, Superintendent of Government General Hospital, Guntur and the Principal, Guntur Medical College issued satisfactory report about services of the writ petitioner. The third respondent Devasthanam has decided to terminate the services of the writ petitioner and accordingly, even without due enquiry, kept its services in abeyance, forcing the petitioner to file W.P.No.15248 of 2019. The third respondent is holding public office with a view to please the political leaders and to help his own contractor, adopted a course adverse to the interest of the writ petitioner was ante-dated order vide proceedings in Rc.No.M1/1371/2019 dated 26.09.2019, which was served on 07.10.2019, keeping the writ petitioner's work in abeyance, which is illegal, arbitrary, malafide and absurd.
3 MSM,J W.P.No.16377 of 2019 Pursuant to the interim order passed in I.A.No.1 of 2019 in W.P.No.15248 of 2019, the writ petitioner has given a representation to the third respondent on 08.10.2019 after 5.00 p.m not to resort to terminate its contract since time given therein is to dispose of explanation submitted by the petitioner to show cause notice within one week from the date of commencement of Dasara festival.
The petitioner provided services to various government departments and also obtained satisfactory reports, including certificate issued by the third respondent Devasthanam; Visakhapatnam Sri Varaha Lakshmi Narasimha Swamy Devasthanam, Dwaraka Sri Venkateswara Swamyvari Devasthanam, and the other departments issued later work orders having satisfactorily fulfilled its work. Thus, the ground of suppression of fact in Form-G was invented only for the purpose of illegally terminating the contract of the writ petitioner. The word in Form-G "debarred" means debarring a contractor in participation of any tender, which is distinct and different from termination. Therefore, exercise of power by the third respondent in issuing the impugned proceedings is totally arbitrary and requested to call for the record and set-aside the same with a direction to continue the work order of this petitioner.
At the stage of admission, Sri Nagam Chandra Shekar Reddy, learned counsel for the petitioner reiterated the contentions urged in the petition, whereas, learned Government Pleader for Endowments supported the impugned order in all respects, while highlighting the conditions specified in Form-G and contended that, for non- compliance of Form-G only, the services of this petitioner were 4 MSM,J W.P.No.16377 of 2019 terminated and therefore, the order is in accordance with the tender conditions, thereby, the impugned order cannot be set-aside by exercising Certiorari jurisdiction.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
"Whether, the petitioner suppressed any material fact in Form- G submitted along with tender form. If so, whether on account of such suppression, termination of the contract is illegal?.
P O I N T:
The Certiorari jurisdiction of the High Court is purely discretionary in nature and such jurisdiction can be exercised in exceptional circumstances. According to Corpus Juris Secundum (Vol.14, page 121) certiorari is a writ issued by a superior court to an inferior court or tribunal commanding the latter to send up the record of a particular case. H.W.R. Wade & C.F. Forsyth define certiorari in these words:-
"Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed that is to say, it is declared completely invalid, so that no one need respect it."
The nature and scope of the writ of certiorari was held by Lord Chancellor Viscount Simon in Ryots of Garabandho and other 5 MSM,J W.P.No.16377 of 2019 Villages v. Zamindar of Parlakimedi and another1 wherein, it was held as follows:
"The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should "be certified" of the proceedings to be investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior "Courts" in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's Superior Courts, and in particular the Court of King's Bench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and operates, within certain limits, in British India."
Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well-settled. The Seven Judge Bench of the Apex Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors2 laid down four propositions and summarized the principles of the Constitution Bench in The Custodian of Evacuee Property Bangalore v. Khan Saheb Abdul Shukoor etc3 as under:-
"the High Court was not justified in looking into the order of December 2, 1952, as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the Constitution 1 AIR 1943 PC 164 2 (1955) 1 SCR 1104 3 (1961) 3 SCR 855
6 MSM,J W.P.No.16377 of 2019 for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque (referred supra) and the following four propositions were laid down :-
"(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law.
In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."
In the exercise of certiorari jurisdiction, the High Court proceeds on an assumption that a Court which has jurisdiction over a subject matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court.
In Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors4, the parameters for the 4 (1958) SCR 1240 7 MSM,J W.P.No.16377 of 2019 exercise of jurisdiction, calling upon the issuance of writ of certiorari where so set out by the Constitution Bench:
"The Common law writ, now called the order of certiorari, which has also been adopted by our Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extra-ordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other words errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected and the appellate authority under a statute in question has unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction and it has not been shown that in exercising its powers the appellate authority disregarded any mandatory provisions of the law but what can be said at the most was that it had disregarded certain executive instructions not having the force of law, there is not case for the exercise of the jurisdiction under Article 226."
The Constitution Bench of the Apex Court in T.C. Basappa v. T. Nagappa & Anr5, held that certiorari may be and is generally granted when a Court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also be issued if the court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural 5 (1955) 1 SCR 250 8 MSM,J W.P.No.16377 of 2019 justice where no particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available, if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari.
Any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is amenable to the certiorari jurisdiction of the High Court. The proceedings of judicial courts subordinate to High Court can be subjected to certiorari.
In the present case, it is an undisputed fact that, along with the tender form, several forms in Form A to H are prescribed for submission along with the bid. Form-A is the information about tenderer which includes all details of tenderer and Form-B relates to details of similar past experience during last financial years of the tenderer. Form-C deals with details of machinery to be deployed to render the work i.e. for providing Housekeeping, Mechanized Sanitation, Sweeping Services to Sri Durgamalleswara Swamy Vari Devasthanam, Indrakeeladri, Vijayawada, whereas, Form-D contains the details of annual turnover during the financial years 2014-15 to 2018-19 to be submitted by the tenderer. Form-E is the details of proposed site organization and Form-F is the details of P.F and E.S.I Registration of the tenderer for its employees. Form-G is a declaration where the tenderer is required to submit declaration that 9 MSM,J W.P.No.16377 of 2019 he has gone through carefully all the tender conditions and declared that he will abide by any of the penal provisions such as disqualification or black listing or determination of contract or any other action deemed fit, taken by, the Department against the tenderer, if it is found that the statements, documents, certificates produced by the tenderer are false/fabricated. The tenderer is further required to disclose that the tenderer has not been blacklisted/debarred/suspended/demoted in any department in Andhra Pradesh or in any State or in Central Government or Government Organizations or SDMS Devasthanam, Vijayawada, due to any reasons. Form-H is only a checklist of certificates to be furnished along with the bid.
The reason for termination of the contract of this petitioner is failure to furnish the details of termination of the contract by Government General Hospital, Guntur and Guntur Medical College. In the impugned letter, there is a clear reference that, while the petitioner was providing sanitation work and security services at Government General Hospital, Guntur, the Vice Chairman and Managing Director, APMSIDC, Hyderabad, Guntur has informed that an infant's death has occurred in Neonatal Intensive Care Unit and further informed that the unfortunate incident at Government General Hospital, Guntur happened due to petitioner's failure in implementing Clauses 4.8(d), (e) and (i) of Section-IV. During inspection of the site made by the Minister for Health, Medical and Family, it was noticed that there is gross negligence on the part of the petitioner and accordingly given directions to terminate the existing contract of sanitation and security services. Taking into 10 MSM,J W.P.No.16377 of 2019 consideration of the above said facts, the Superintendent, Government General Hospital, Guntur has terminated the services of the petitioner by issuing separate proceedings.
The specific reason assigned in paragraph No.3 of the order impugned is that, while uploading the documents in e-tender site by Chaitanya Jyothi Welfare Society/the petitioner herein, the petitioner has suppressed the above fact in Form-G declaration and submitted the tender schedule. On coming to know about the termination of contract, the third respondent Devasthanam has issued notice calling for the petitioner's explanation on the above incidents and on receipt of the explanation by the petitioner, the order was passed in view of the specific directions issued by this Court in W.P.No.15248 of 2019. The petitioner admitted about termination of contract by Government General Hospital, Guntur. In this context, date of termination of contract of services of this petitioner is necessary for deciding the real controversy. Before adverting to the other details, it is appropriate to advert to the General Obligations in Chapter-II of the Tender Document. Clause 2.3 deals with termination of contract. Sub-clause (e) of Clause 2.3 is relevant for deciding the real controversy and the same is extracted hereunder for better appreciation of the case.
(e) If the contractor, in the judgment of the Department has engaged in corrupt or fraudulent practices in competing for or in the executing the contract.
"For the purpose of this paragraph "corrupt practice"
means the offering, giving, receiving or soliciting of anything of value to influence the action of a public official in the procurement process or in contract execution. "Fraudulent practice" means a misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment to the SDMS Devasthanam, Vijayawada 11 MSM,J W.P.No.16377 of 2019 and includes collusive practice among tenderers (prior to or after Tender submission) designed to establish Tender prices at artificial non-competitive levels and to deprive the SDMS Devasthanam, Vijayawada of the benefits of free and open competition/transparency.
Notwithstanding the above the Department may terminate the contract for convenience.
If the contract is terminated, the Contractor shall stop work immediately, make the site safe and secured and leave the site as soon as reasonably possible."
The reason assigned for termination of the work order of the petitioner is 'fraudulent practice', according to the contention of the learned Government Pleader for Endowments i.e. a misrepresentation of fact in order to influence a procurement process or the execution of a contract to the detriment to Sri Durga Malleswara Swamy Vari Devasthanam, Vijayawada. The tenders were called on 31.08.2019 and contract of this petitioner with the Government General Hospital, Guntur was on 31.08.2015, whereas, a show cause notice was issued in Rc.No.M1/1371/2019 dated 25.09.2019. In the second paragraph of the show cause notice, it is specifically asserted by the third respondent that, after careful examination of the matter with reference to the termination order, it is a clear case of misconduct on the part of Chaitanya Jyothi Welfare Society (the petitioner herein) and for the suppression of factum of termination of their contract in the year 2015 by the Government General Hospital, Guntur, based on the reason noted in paragraph No.2 of the show cause notice, the contract is sought to be terminated, for which a reply dated 26.09.2019 was issued by the petitioner while denying the material allegations, more particularly, the termination of the contract of the Government General Hospital, 12 MSM,J W.P.No.16377 of 2019 Guntur. Thus, the specific reason assigned for proposed cancellation as per show cause notice was termination of contract in the year 2015 by the Government General Hospital, Guntur. This fact is not denied and Government General Hospital, Guntur terminated the contract of this petitioner on 31.08.2015, though denied by the petitioner, while contending that the sanitation services of these petitioners were utilized by the Government General Hospital, Guntur even subsequent to the alleged termination by proceedings No.A1/Outsourcing/Allotment/ 2016 dated 16.11.2016 passed by the District Collector/Chairman, District Level Outsourcing Committee, Guntur District and the petitioner provided services to the Government General Hospital, Guntur which is shown in Serial No.2 in the table annexed to the proceedings. Similarly, on 20.10.2018, vide proceedings No.KRN/Outsourcing/2017, Sri B. Lakshmikantham, I.A.S, the Collector and District Magistrate, Krishna District issued proceedings permitting this petitioner to perform outsourcing activity to the Government Departments allocated/indicated in Krishna District with effect from 01.10.2018 to 31.07.2019 or upto issuance of further orders, subject to certain conditions annexed to the order. Similarly, vide Proceedings No.A1/Outsourcing/Allotment/2019-I dated 02.03.2019, in exercise of power under Section 13 of Contract Labour Act, 1970, several outsourcing agencies were recognized and this petitioner's society is in Serial No.3, allotting 160 posts to the petitioner's agency for providing manpower. But, those documents are not relevant for deciding the real controversy between the parties, in view of the 13 MSM,J W.P.No.16377 of 2019 specific reason assigned for termination of contract work by the third respondent.
As per the discussion in the earlier paragraphs, though the contract of this petitioner is terminated by Government General Hospital, Guntur in the year 2015, still the petitioner was recognized as manpower supplier by the District Collector in the proceedings referred supra. More curiously, Superintendent of Government General Hospital, Guntur and the Principal, Guntur Medical College, issued certificate, certifying that the performance of this petitioner in discharging contractual obligation in housekeeping work is satisfactory. But, those certificates have nothing to do with this contract and at best, the appreciation is only regarding performance. But, still, the obligation of this petitioner is to disclose the relevant information, as sought for in Form-G declaration filed along with the tender form. The tenders were submitted long after to the termination of contract by Government General Hospital, Guntur in the year 2015 and tender in question was submitted in the year 2019 itself, as per tender Notification No.02/SDMSD/2019-20 dated 31.08.2019. One of the requirements prescribed in the tender form is to disclose information about blacklisting/debarring/suspending/ demoting in any department in Andhra Pradesh or in any State or in Central Government or Government Organizations or SDMS Devasthanam, Vijayawada, due to any reason. But, simply the petitioner submitted his declaration that he was not blacklisted/debarred/suspended/demoted in any department in Andhra Pradesh or in any State or in Central Government or Government Organizations or SDMS Devasthanam, Vijayawada in 14 MSM,J W.P.No.16377 of 2019 Form-G submitted along with the tender form. The petitioner himself admitted that the contract was terminated by Government General Hospital, Guntur, in the year 2015, but pleaded an excuse that, as they did not pay the amount payable to the contractor, the petitioner himself requested to terminate the contract, but, Government General Hospital, Guntur terminated the contract inventing a different ground. Therefore, termination of contract by Government General Hospital, Guntur is admitted in paragraph No.9 of the affidavit filed along with this petition. In such case, the petitioner is bound to disclose such information about termination of the contract by Government General Hospital, Guntur, as required in Form-G. On the contrary, the petitioner specifically stated that, he was not blacklisted/debarred/suspended/demoted in any department in Andhra Pradesh or in any State or in Central Government or Government Organizations or SDMS Devasthanam, Vijayawada.
The peculiar argument, the learned counsel for the petitioner advanced before this Court is that, termination of this petitioner is not included in the proforma i.e. in Form-G, therefore, non- disclosure of termination does not amount to suppression of fact.
No doubt, the word 'termination' is not included in Form-G, but still, it is more serious than 'suspension'. If suspension is included in 'Form-G', whether it is substantive or a temporary suspension during pendency of any enquiry is not clear. It is a total suspension and it can be treated as suspension in Form-G, as punitive in nature and it is nothing but termination of entire contract. More so, termination of contract is more serious than the suspension, if the suspension is for limited period. Therefore, non-
15 MSM,J W.P.No.16377 of 2019 disclosure of termination of contract in the year 2015 by the Government General Hospital, Guntur, which is a government department, is sufficient to terminate the contract of this petitioner in terms of Clause 2.3(e) which is extracted in the earlier paragraphs.
According to Sub-clause (e) of Clause 2.3 of the tender conditions, in case of "Fraudulent practice" i.e misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment to the SDMS Devasthanam, Vijayawada, and non-disclosure of the termination of the contract is sufficient to conclude that this petitioner played fraud in terminating the work by tender process. Hence, termination of the contract by third respondent Devasthanam is in accordance with the terms and conditions of the tender and thereby, it is difficult to uphold the contention of the learned counsel for the petitioner not to declare the action of the third respondent as illegal and arbitrary.
Normally, the Courts cannot give different interpretation to the tender terms and the duty of this Court is to verify whether the respondent followed the procedure in processing the tender or not and the Courts would not interfere with the tenders, interpreting tender conditions, relaxing any tender conditions, in view of law declared by the Apex Court in Durgawathi Devi v. Union of India THR, Its Secretary, Ministry and others6.
The Apex Court succinctly held that the Court shall not interfere with the tender process. In Municipal Corporation, Ujjain & another v. BVG India Ltd. and Ors7 the Apex Court held that, 6 Special Leave Petition (c) No.37479 of 2016 7 Civil Appeal No. 3330 of 2018 arising out of SLP (Civil) No. 11967 of 2016] dated 27.03.2018 16 MSM,J W.P.No.16377 of 2019 public interest litigation is not maintainable in contract matters. Moreover, only when a decision making process is so arbitrary or irrational that no responsible authority proceeding reasonably or lawfully could have arrived at such decisions, power of judicial review can be exercised. However, if it is bona fide and in public interest, the Court will not interfere in the exercise of power of judicial review even if there is a procedural lacuna. The principles of equity and natural justice do not operate in the field of commercial transactions. Wherever a decision has been taken appropriately in public interest, the Court ordinarily should exercise judicial restraint. When a decision is taken by the concerned authority upon due consideration of the tender document submitted by all tenderers on their own merits and it is ultimately found that the successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down, the same may not ordinarily be interfered with."
In The Silppi Constructions Contractors vs. The Union of India and Ors8, the Apex Court reiterated the same principles with regard to maintainability of writ petition in tender or contractual matters, relying on the catena of judgments of Supreme Court, more particularly, Tata Celluar v. Union of India9, wherein the Apex Court laid down six guidelines which are as follows:
(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does no sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision 8 Special Leave Petition (Civil) Nos.13802-13805 of 2019 dated 21.06.2019 9 (1994) 6 SCC 651
17 MSM,J W.P.No.16377 of 2019 is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
The Apex Court also referred to various earlier judgments in Raunaq International Ltd. V. I.V.R. Construction Ltd10, Air India Limited v. Cochin International Airport Ltd11, Karnataka SIIDC Ltd v. Cavalet India Ltd12, Master Marine Services (P) Ltd v. Metcalfe & Hodgkinson (P) Ltd13, B.S.N. Joshi & Sons Ltd v. Nair Coal Services Ltd14, Jagdish Mandal v. State of Orissa15 and Michigan Rubber (India) Ltd. V. State of Karnataka & Ors16 and finally concluded that the power of the Court to interfere with contractual matter of tender is limited.
In Michigan Rubber (India) Limited v. State of Karnataka and others17, the Apex Court observed that the scope of interference 10 (1999) 1 SCC 492 11 (2000) 2 SCC 617 12 (2005) 4 SCC 456 13 (2005) 6 SCC 138 14 (2006) 11 SCC 548 15 (2007) 14 SCC 517 16 (2012) 8 SCC 216 17 (2012) 8 SCC 216 18 MSM,J W.P.No.16377 of 2019 of Court in contractual matters is very limited and that the tender issuing authority/ Airport Authority of India has fully justified its policy decision and no bias or malafide on the part of any authority or person connected thereto has been established by the Petitioners and concluded that the preliminary objection to the maintainability of this petition is justified and the Petitioner, through this public interest litigation, cannot seek to assail the terms, on which the Respondent/authority should award its tender or what conditions should be prescribed, when he is not a participating party in the tender.
As stated in earlier paragraphs, while discussing about the scope of Writ of Certiorari, it is clear that the jurisdiction of this Court under Article 226 of the Constitution of India is purely discretionary like exercise of power in a suit for specific performance. But, in view of the facts narrated in the earlier paragraphs, it is difficult to exercise such discretionary power to issue Writ of Certiorari in favour of this petitioner.
In view of the law laid down by the Apex Court in the judgments referred supra, judicial interference in contract matters/tenders is limited while exercising power of judicial review. As discussed above, I find no apparent arbitrary exercise of power by the third respondent in terminating the contract of this petitioner in violation of Article 14 of the Constitution of India and more so, the conduct of the petitioner creates any amount of suspicion. Since the petitioner suppressed the termination of contract by Government General Hospital and Medical College, Guntur in the year 2015, as admitted by the petitioner in paragraph No.9 of the petition, it is 19 MSM,J W.P.No.16377 of 2019 suffice to deny the relief, as it is a fraudulent representation in the process of tender and such suppression is sufficient to exercise power under Clause 2.3(e) of the Tender Conditions and thereby, the termination of the work contract is justifiable. Consequently, the writ petition is liable to be dismissed.
In the result, writ petition is dismissed. No costs. Consequently, miscellaneous applications pending if any, shall stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:06.12.2019 SP