Karnataka High Court
A L Satish Kumar vs The State Of Karnataka on 21 November, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.21876 OF 2022 (GM - TEN)
C/W
WRIT PETITION No.22412 OF 2022 (GM - TEN)
IN WRIT PETITION No.21876 OF 2022
BETWEEN:
1. A.L.SATISH KUMAR
AGED 48 YEARS
OCC.: PROPRIETOR
S.P.T ENTERPRISES
NO.41, K.H.ROAD (DOUBLE ROAD)
BENGALURU - 560 027.
2. H.N.ROOPESHKUMAR
AGED 41 YEARS
OCC.: PARTNER
M/S ANNAPOORNESHWARI ASSOCIATES
A REGISTERED PARTNERSHIP FIRM
#6/6D, VIVEKANANDA NAGAR
BEGUR ROAD, BENGALURU - 560 068.
3. K.R.SRINIVAS REDDY
AGED 58 YEARS
OCC.: PROPRIETOR
2
M/S LAVAKUSHA TRANSPORT
GROUND FLOOR, HOSUR ROAD
ELECTRONIC CITY ROAD,
LAVA KUSH NAGAR
BENGALURU - 560 100.
... PETITIONERS
(BY SRI ASHOK HARANAHALLI, SR.ADVOCATE A/W
SRI VINAYAKA B., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
REPRESENTED BY PRINCIPAL SECRETARY
M.S.BUILDING
BENGALURU - 560 001.
2. BRUHAT BENGALURU MAHANAGARA PALIKE
REPRESENTED BY ITS COMMISSIONER
N.R.SQUARE, BENGALURU
KARNATAKA - 560 002.
3. BENGALURU SOLID WASTE MANAGEMENT LTD.,
REPRESENTED BY ITS
CHIEF GENERAL MANAGER (TECH)
1ST FLOOR, UNI BUILDING, THIMMAIAH ROAD
MILLERS TANK BUND AREA
VASANTH NAGAR
BENGALURU - 560 052.
4. EXECUTIVE ENGINEER - 1
SOLID WASTE MANAGEMENT - 1
3RD FLOOR, ANNEX - 2 BUILDING
BBMP HEAD OFFICE PREMISE
3
N.R.SQUARE,
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI VINOD KUMAR M., AGA FOR R1;
SRI VIKRAM HUILGOL, SR.ADVOCATE FOR
SRI PRASHANTH CHANDRA S.N., ADVOCATE FOR C/R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE REQUEST FOR
PROPOSAL BEARING NO.CGM(TECH)/BSWML/TEND/02/2022-23
DTD.28.9.2022 ISSUED BY THE R-3 VIDE ANNEXURE-A; QUASH
THE ADDENDUM-I DTD.18.10.2022 ISSUED BY THE R-3 VIDE
ANNEXURE-N AND ETC.,
IN WRIT PETITION No.22412 OF 2022
BETWEEN:
1 . MR. RANGANATHA. B.,
S/O MR.BANGARAIAH M.V.,
AGED ABOUT 54 YEARS
R/A NO.121, MEDAHALLI
MUNISWAMY NAIDU COMPOUND
BANGALORE NORTH
BENGALURU - 560 049.
2 . MR. M. C. PRABHAKAR REDDY
S/O MR CHINNA REDDY
AGED ABOUT 54 YEARS
R/A NO.508, 1ST CROSS
NEAR RING ROAD
SARASWATHI NAGAR
MAHADEVPURA
BANGALORE NORTH
BENGALURU - 560 048.
4
3 . MR. G. ASHWATHNARAYANA REDDY
S/O MR. M. GOVINDA REDDY
AGED ABOUT 49 YEARS
R/A NO.58, MAIN ROAD
NEAR SREE RAMA TEMPLE
ANNASANDRAPALYA
BANGALORE NORTH
BENGALURU - 560 017.
4 . MR. GIRISH V.S.,
S/O MR. SONNAPPA
AGED ABOUT 32 YEARS
R/A NO.508/1
1ST CROSS, NEAR RING ROAD
SARASWATHINAGAR
MAHADEVPURA
BENGALURU - 560 048.
... PETITIONERS
(BY SRI, AJIT P.B., ADVOCATE)
AND:
1. GOVERNMENT OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
REPRESENTED BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BENGALURU - 560 001.
2. BENGALURU SOLID WASTE MANAGEMENT
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER
1ST FLOOR, UNI BULDING
THIMMAIAH ROAD
MILLERS TANK BUND AREA
VASANTH NAGAR
BENGALURU - 560 052.
... RESPONDENTS
(BY SRI. VINOD KUMAR M, AGA FOR R1
5
SRI. VIKRAM HUILGOL, SR. ADVOCATE FOR
SRI. PRASHANTH CHANDRA S.N., ADVCOATE FOR C/R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION IN NO.CGM(TECH)/BSWML/TEND/02/2022-23, DTD
28.09.2022 ISSUED BY THE R2 FLOATING THE TENDERS FOR
SECONDARY TRANSPORTATION OF SEGREGATED WET WASTE AND
DRY WASTE AND OTHER WASTE IN VARIOUS WARDS OF BBMP AS
PER ANNEXURE-A.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.11.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners are before this Court calling in question tender notification which is in the form of Request for Proposal dated 28-09-2022 and an Addendum issued thereto on 18-10-2022.
Since both these writ petitions arise out of a common tender notification almost on similar facts, they are taken up together and heard.
2. Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:-
W.P.No.21876 of 2022:
The petitioners claim to be prospective bidders of the tender notified by the 3rd respondent/Bengaluru Solid Waste Management 6 Limited (hereinafter referred to as 'the Company' for short). The 1st petitioner claims to be the proprietor of one S.P.T. Enterprises and claims to be in the profession of management of solid waste since 2000 and further claims that he has been the successful bidder in various tender packages for the management OF solid waste several times and is in possession of vehicles and manpower that would enable execution of any contract of management of solid waste. The 2nd and 3rd petitioners also claim to be in the same management with slight variance of years of experience. The garbage clearance or solid waste management in the City of Bangalore had become a huge problem which led a Division Bench of this Court in Writ Petition Nos.39337-39354 of 2012 and connected cases to pass certain orders. Claiming to be in furtherance of the said order, the 3rd respondent comes into existence. The 3rd respondent is a company formed in the name and style of 'Bengaluru Solid Waste Management Limited' in which Government and Bruhat Bengaluru Mahanagara Palike ("BBMP" for short) have partnered in the management of solid waste. The 3rd respondent invites a tender on 28-09-2022 which is titled as 'Request for Proposal' (hereinafter referred to as 'the tender' for 7 convenience). The last date for submission of proposal in terms of the tender so notified is 21-11-2022. The petition is filed by these petitioners claiming to be aggrieved by certain clauses of the tender and have sought quashment of tender notification or consider their cases also pursuant to the same tender notification.
W.P.No.22412 OF 2022:
The facts, grounds and the prayers in this writ petition are similar to Writ Petition No.21876 of 2022 and as such they are not separately noticed herein but considered along with it.
3. Heard Sri Ashok Haranahallli, learned senior counsel appearing for the petitioners in Writ Petition No.21876 of 2022; Sri P.B.Ajit, learned counsel appearing for petitioners in W.P.No.22412 of 2022; Sri Vinod Kumar.M, learned Additional Government Advocate appearing for respondent No.1; Sri Vikram Huilgol, learned senior counsel appearing for the Company and Sri R.S.Ravi, learned counsel who has filed an application seeking impleadment in these proceedings.
84. The learned senior counsel appearing for the petitioners in Writ Petition No.21876 of 2022 would contend that the tender is notified declaring that bidders can bid for all packages but would be entitled to award of tender for not more than one package. This, the learned senior counsel would submit that it runs counter to what the Division Bench has said. The second contention of the learned senior counsel is that, all the members of consortium must have experience in health and sanitation works has no nexus with the object sought to be achieved and, therefore, every member involved in the management of solid waste need not have experience in health and sanitation work. He would further contend that in terms of Clause 2.7.5 the successful bidder must compulsorily procure new vehicles and all new vehicles must be BS-
VI compatible vehicles. With these contentions, the learned senior counsel would contend that the petitioners are ready and willing to get compressed natural gas fitted into their vehicles which can be used. He would also contend that formation of 3rd respondent/Company itself is contrary to law as Section 285 of the Bruhat Bengaluru Mahanagara Palike Act, 2020 ('Act' for short) would not enable the BBMP to take support from an agency to 9 execute management of solid waste. The Government cannot be termed to be an agency and, therefore, the constitution is wrong.
The ultimate object is that it should not lead to pollution.
5. The learned counsel appearing for the petitioners in Writ Petition No.22412 of 2022 would adopt the submissions of the learned senior counsel Sri Ashok Haranahalli.
6. On the other hand, the learned senior counsel appearing for the Company refuting the aforesaid contentions would submit that packages are restricted to one for a particular purpose, as it should not create monopoly to certain tenderers. The past experience has led to many tenderers tendering many packages and failing to perform their duties in terms of the contract. Each package could contain three wards or four wards. Maintenance of those wards, if it is restricted, would lead to healthy competition and clean atmosphere. He would submit that clauses with regard to all members of consortium must have experience in health and sanitation had been clarified in pre-bid meetings and answered to those questions of the bidders. Insofar as formation of the Company is concerned he would submit that under the Act, BBMP is 10 empowered to enter into a contract with any agency. In the facts and circumstances of the case, Government holding 49% of stakes in the Company, it makes the Company all the more accountable.
Play of words should not be permitted to nullify any avowed objective for which the Company is created.
7. Sri R.S. Ravi, learned counsel who seeks to implead into these proceedings claims to be representing 90% of bidders who have been in the job of executing works of management of solid waste for ages now. He would contend that they are all in support of the conditions imposed in the tender and the apprehension of those tenderers are also clarified in the pre-bid meetings and there is no warrant to interfere in the tenders at the behest of two or three who seek to question the same on any frivolous grounds.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. To consider the contentions so advanced by the respective learned senior counsel, it is germane to notice a little history to the 11 problem. Management of solid waste had become a serious issue for which several public interest petitions were filed before the Division Bench of this Court. The Division Bench hearing those cases in terms of its order dated 26-04-2013 considered the entire issue thread bear and gave following directions:
"(i) The tender notification should specify the exact area, showing the area by means of a sketch of each package.
(ii) A person is entitled to bid for all the packages. But, he shall not be awarded more than five packages of his choice.
(iii) Benami contracts and name lending should be strictly prohibited. If a person to whom a contract is awarded is found to be a benamidar, or name lender of the officials of the Corporation or the Corporators, including nominated members, or other elected members, the said contract is liable to be terminated.
(iv) There shall be no sub-contract or introduction of a new agency or clandestine arrangement for providing service. If the contract is assigned in any such manner, the contract is liable to terminated.
(v) Specifications of the vehicles must be strictly in accordance with Schedule II Sl.No.4 of the Municipal Solid Wastes (Management and Handling) Rules, 2000. Vehicles used for transportation of wastes shall be covered. Waste should not be visible to public, nor exposed to open environment preventing their scattering.
(vi) The technical evaluation must be strictly through e-portal and not through department/officials so that intervention of the authorities or outside agencies can be curbed.
(vii) The mobilization of men and material as stipulated in clause 15.9.3 of the tender document should be done in the 12 presence of RTO, the BBMP, vehicle supervisor, representatives of "Residents Welfare Association" and "Suchi Mitra".
(viii) No objection certificate from representatives of "Residents Welfare Association" and "Suchi Mitra" is to be obtained before release of payment on the monthly bills.
(ix) Once the contract is entered into, the particulars such as the name of the contractor with father's name, the address, the phone numbers, the number of vehicles employed with registration numbers and the make, number of persons employed shall be displayed in the website of the Corporation for the information of the general public.
(x) The tender notification shall be issued at least 120 days before the existing contract expires to that new contract can be awarded immediately after the expiry of the previous contract."
In the light of the aforesaid directions, the Division Bench passed the following order:
(a) Writ Petitions are partly allowed.
(b) The tender condition prescribing concession to SC/ST
individual both in respect of EMD amount and solvency is hereby quashed. However, those SC/ST individuals who have secured the contract, in the event of their making good the shortfall namely 90% within two months from today, their contracts shall not be cancelled.
(c) The BBMP shall initiate steps to award contracts in respect of 30 packages which is awarded to B.V.G India which they have offered to surrender.
(d) The contract awarded to B.V.G India in respect of (90+3) 12 packages, where they are functioning shall not be disturbed.
13(e) In respect of 8 packages awarded to B.V.G India where breach is alleged, the BBMP shall take steps immediately to resolve the dispute, and in the event the said contracts are terminated, in respect of the same also the tender process shall begin immediately.
(f) While framing the tender conditions the Corporation shall bear in mind the observations and directions issued in this order supra and also the orders passed from time to time in the connected public interest litigation and the steps taken and commitment, received by the Corporation from the bulk generators of garbage, as well as industrial houses and group housing associations.
(g) The terms and conditions of tender shall be in conformity with the Municipal Solid Waste (Management and Handling)Rules, 2000.
(h) Parties to bear their own costs."
10. In terms of the order passed by the Division Bench supra, tenders were sought to be notified from time to time in packages as was directed earlier. Government and the BBMP have come up with partnership kind of a plan in terms of Section 285 of the Act to implement Solid Waste Management Rules, 2016 to regulate handling and management of municipal solid waste. Section 285 of the Act reads:
"285. Duty of the Corporation in handling solid waste.-
(1)It shall be the duty of the Corporation, either through an agency or through its own to implement the provisions of the Solid Waste Management Rules, 2016 to regulate the management and handling of municipal solid waste and for the development of any 14 infrastructure for collection, storage, transportation, processing and disposal of such solid wastes.
(2) The Corporation shall also prepare a solid waste management plan in accordance with the policy of the state and implement this strategy.
(3) The Corporation shall also train waste pickers and collectors on solid waste management.
(4) The Corporation shall also involve communities in waste management and shall promote home composting and other such processes at the community level.
(5) The Corporation shall create public awareness through information about the need for ensuring proper waste management."
It is this Company that now floats the tender. The clause 1 of tender that is germane reads as follows:
"1. The Chief General Manager (Tech.), on behalf of Managing Director, BSWML is withdrawing the earlier tender Notification No.CGM(TECH)/BSWML/TEND/02 /2022-23, Dated 22-08-2022 and invites fresh proposals for "Selection of Service Provider for Primary Collection & Transportation Services in Covered Vehicle along with the Secondary Transportation of Waste in Segregated Manner to designated locations". Any reputed NGO/Sole Proprietor/ Trust/ HUF/ Partnership/ Companies registered under Companies Act 1956/2013 is eligible for undertaking the above services. And in this tender a bidder can bid for all packages but, he/she shall not be awarded more than one package."
Relevant instructions to bidder read as follows:
"2.2.1. For determining the eligibility of Bidders for their qualification hereunder, the following shall apply:
... .... ...
15
(d) PROPOSAL BY CONSORTIUMS
... .... ...
All the members of the Consortium must have experience in Health and Sanitation works.
... ..... ...
2.7.5 All the successful bidders have to compulsorily procure
the new vehicles for primary door to door collection of capacity 1 cum, 2 cum and 5 cum as per this RFP. All new vehicles must be BS-VI compatible vehicles. All new vehicles will be covered vehicles only. The vehicle used for collection of street sweeping waste and C & D waste will be an open vehicle and this should be part of methodology and work plan."
The contention is that awarding of package is restricted to only one.
The Division Bench in terms of its directions supra had permitted a person to bid in all the packages, but he shall not be awarded more than 5 packages of his choice. Not more than 5 packages would mean the maximum 5; it would not mean that it is 5 only; it can vary from 1 to 5. The awarding of package to a successful tenderer in the present tender is restricted to only one. A package can include 2 wards, 3 wards or 4 wards as the case would be, depending upon the size of wards. Explanation of the learned senior counsel for the Company is that one package is restricted to one successful bidder for the reason that it generates healthy competition and they should be able to perform best by keeping the 16 ward clean by managing solid waste. The explanation is further submitted by statement of objections as well, in which it is explained that earlier there were 198 wards, but now the wards have increased to 243. In the past many tenderers had emerged as successful bidders in more than 5, 10 or 15 packages which led to poor performance of their work. It is therefore for every tenderer to get adequate opportunity and accountability in keeping the package ward clean, the package is restricted to one, merits acceptance. It is also to be noticed that in the earlier tenders the segregation of wet waste or dry waste and its regulation was not as pronounced as is in the present tender. Therefore, the package being restricted to one cannot be found fault with, as this Court would not get into ground realities of execution of a contract or conditions stipulated in the tender document for execution of such contract. Conditions of tender are the prerogative of the Tender Inviting Authority unless those conditions are arbitrary, whimsical or made to suit any particular tenderer. It is the other way in the case at hand as it is not made to suit any particular tenderer but given an opportunity to all tenderers and generates healthy competition which would defeat 17 monopoly. Therefore the first contention of the learned senior counsel for the petitioners fails.
11. The second contention is concerning a prescription of all the members of consortium having health and sanitation works.
This is clarified by the Company itself that all the members need not have experience in health and sanitation works. The clarification rendered in pre-bid queries reads as follows:
"Sl.No. 2.
As per RFP 2.2.1 (d) All the members of Consortium
must have experience in Health &
Sanitation works.
Queries from All the members of the consortium
Prospective bidders must have experience in Health &
Sanitation works. This condition violates the very purpose of the Consortium. If that is the case, then BSWML would have gone for the ward wise tender rather than package wise. Therefore, please relax this condition and propor-tionately all other qualification criteria such as turnover and other.
BSWML replies Clause 2.2.1 (d) can be read as "The lead
member of the Consortium should have
experience in Primary/Secondary
Collection and Transportation of Municipal Solid Waste".
18The clarification is that the lead member of the consortium should have experience in primary/secondary collection and transportation of municipal solid waste. It appears, that has been further clarified in reply/clarification to queries which read as follows:
"Sl.No. 2.
As per RFP/ 3.4.1 (A)(1) Bidder should have
Adendum-1 experience in Primary/Secondary
Collection & Transportation of Municipal Solid Waste work in any Central/State/Government organi-
zation/ULB's above City Municipal Corporation for 24 months in last 5 financial years (FY 2017-18, 2018-19, 2019-20, 2020-21& 2021-22).
In case of consortium all members cumulatively should satisfy the above condition. However, lead member should have minimum 12 months of experience.
Queries from Requested to change the prospective bidders Evaluation criteria to "Bidder should have experience in Health and sanitation work in any Govt. Organization (above City Municipal Corporation) for 24 months in last 5 financial years (FY 2017- 18, 2018-19, 2019-20, 2020-21& 2021-
22).
BSWML Replies 3.4.1.(A)(1) can be read as:
"Bidder/Consortium (all members cumulatively) should have experience in Primary/Secondary Collection & Transportation of Municipal Solid Waste work in any Central/State/Government Organization /ULB's above City Municipal 19 Corporation for 36 months in last 5 financial years (FY 2017-18, 2018-19, 2019-20, 2020-21& 2021-22)."
Therefore, the learned senior counsel would contend that every now and then clarification is being given one to pre-bid queries and the other to reply/clarification to queries. It is for the BBMP to stick to either of them since it is a condition that cuts at the root of the matter as if the tenderers do not have experience in managing solid waste, the work being awarded to such tenderers can lead to jeopardizing the very concept of keeping the city clean.
12. Again, it is for the BBMP to prescribe such conditions. But the bidder and consortium members to be having experience of collection and transportation of municipal solid waste work in any Central/State/Government organization or Urban Local Bodies for 36 months in the last 5 financial years appears to be towards the object of achievement of management of solid waste. The answer to the pre-bid query was vague. It is for the BBMP to choose the method of experience and qualification of the tenderer. Therefore, the second submission also does not merit acceptance.
2013. The third submission made is in terms of clause 2.7.5 supra that all the vehicles must be of BS-VI compatible. No court can find fault with the Company seeking vehicles which would not generate pollution in the City. If BS-VI compatible vehicle is sought for, it is for the purpose that it does not generate pollution. This also is clarified by the BBMP by issuing an addendum that the vehicles can retro fitted with CNG. If any methodology that would be required with the object of checking pollution in the City, such methodology is a welcome addition in any tender document.
Keeping the milieu clean be it by managing the solid waste or checking pollution of any City is the paramount objective of an Urban Local Body, the BBMP in the case at hand. Therefore, the contention that there is no object sought to be achieved by seeking new BS-VI compatible vehicles would also tumble down, more so, in the light of the clarification issued by the BBMP. It is for the BBMP to generate any clarification that would reduce or eradicate complete pollution in the City.
14. The submission with regard to Section 285 of the Act which permits collaboration with any agency cannot now be gone 21 into, in the considered view of the Court. The constitution of the Company cannot be challenged by the tenderer who seeks to submit his tender in terms of document floated by the Company. All along the contention is that they should be permitted to tender and in the same breath cannot say that the Company itself is erroneously constituted. The said contention is left open for the time being to be considered in an appropriate matter. Therefore, the contention of the learned senior counsel for the petitioners would touch upon the prescription of conditions of tender for which the Courts would be loathe to interfere in exercise of its power of judicial review under Article 226 of the Constitution of India. The Apex Court in SILPPI CONSTRUCTIOINS CONTRACTORS v.
UNION OF INDIA AND ANOTHER1 has held as follows:
"7. In Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651] , it was held that judicial review of government contracts was permissible in order to prevent arbitrariness or favouritism. The principles enunciated in this case are: (SCC pp. 687-88, para 94) "94. ...
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.1
(2020) 16 SCC 489 22 (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision 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 from 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."
(emphasis in original)
8. In Raunaq International Ltd. v. I.V.R. Construction Ltd. [Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492] , this Court held that the superior courts should not interfere in matters of tenders unless substantial public interest was involved or the transaction was mala fide.
9. In Air India Ltd. v. Cochin International Airport Ltd. [Air India Ltd. v. Cochin International Airport Ltd., (2000) 23 2 SCC 617] , this Court once again stressed the need for overwhelming public interest to justify judicial intervention in contracts involving the State and its instrumentalities. It was held that the courts must proceed with great caution while exercising their discretionary powers and should exercise these powers only in furtherance of public interest and not merely on making out a legal point.
10. In Karnataka SIIDC Ltd. v. Cavalet (India) Ltd. [Karnataka SIIDC Ltd. v. Cavalet (India) Ltd., (2005) 4 SCC 456] it was held that while effective steps must be taken to realise the maximum amount, the High Court exercising its power under Article 226 of the Constitution is not competent to decide the correctness of the sale effected by the Corporation.
11. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. [Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd., (2005) 6 SCC 138] it was held that while exercising power of judicial review in respect of contracts, the court should concern itself primarily with the question, whether there has been any infirmity in the decision-making process. By way of judicial review, the court cannot examine details of terms of contract which have been entered into by public bodies or the State.
12. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548] it was held that it is not always necessary that a contract be awarded to the lowest tenderer and it must be kept in mind that the employer is the best judge therefor; the same ordinarily being within its domain. Therefore, the court's interference in such matters should be minimal. The High Court's jurisdiction in such matters being limited, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record.
2413. In Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] it was held:
(SCC p. 531, para 22) "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.
The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold."
14. In Michigan Rubber (India) Ltd. v. State of Karnataka [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216] it was held that if the State or its instrumentalities acted reasonably, fairly and in public interest in awarding contract, interference by court would be very restrictive since no person could claim fundamental right to carry on business with the Government. Therefore, the courts would not normally interfere in policy decisions and in matters 25 challenging award of contract by the State or public authorities.
15. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] it was held that a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision. The owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.
16. In Montecarlo Ltd. v. NTPC [Montecarlo Ltd. v. NTPC, (2016) 15 SCC 272 : AIR 2016 SC 4946] it was held that where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.
17. In Municipal Corpn., Ujjain v. BVG (India) Ltd. [Municipal Corpn., Ujjain v. BVG (India) Ltd., (2018) 5 SCC 462 : (2018) 3 SCC (Civ) 291] it was held that the authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. The court cannot compel the authority to choose such undeserving person/company to 26 carry out the work. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work.
18. Most recently this Court in Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd. [Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd., (2019) 14 SCC 81] observed that a writ petition under Article 226 of the Constitution was maintainable only in view of government and public sector enterprises venturing into economic activities. This Court observed that there are various checks and balances to ensure fairness in procedure. It was observed that the window has been opened too wide as every small or big tender is challenged as a matter of routine which results in government and public sectors suffering when unnecessary, close scrutiny of minute details is done.
19. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear 27 like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.
20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case."
(Emphasis supplied) In N.G. PROJECTS LIMITED v. VINOD KUMAR JAIN AND OTHERS2 the Apex Court has held as follows:
"10. We find that the interference in contract awarded to the appellant is wholly unwarranted and has caused loss to public interest. Construction of roads is an essential part of development of infrastructure in any State. The learned Single Bench and the Division Bench of the High Court were exercising power of judicial review to find out whether the decision of the State was manifestly arbitrary or unjust as laid down by this Court in Tata Cellular v. Union of 2 (2022) 6 SCC 127 28 India [Tata Cellular v. Union of India, (1994) 6 SCC 651] and to act as appellate authority over the decision of the State. This Court in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] held as under: (SCC pp. 675, 677-78 & 687-88, paras 70, 77 & 94) "70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State.
The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.
***
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,
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 29 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 [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] unreasonableness.
(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. Secy. of State for the Home Deptt., ex p Brind [R. v. Secy. of State for the Home Deptt., ex p Brind, (1991) 1 AC 696 : (1991) 2 WLR 588 (HL)] , 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'.
***
94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not 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 is permitted it will be substituting its own decision, 30 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 [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] principle of reasonableness (including its other facts pointed out above) but must be free from 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.
Based on these principles we will examine the facts of this case since they commend to us as the correct principles."
(emphasis supplied)
... ... ... ...
12. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] , this Court held that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. It was held as under : (SCC p. 825, paras 13 & 15) "13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a 31 constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision- making process or the decision.
***
15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."
13. This Court sounded a word of caution in another judgment reported as Silppi Constructions Contractors v. Union of India [Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489] , wherein it was held that the courts must realise their limitations and the havoc which needless interference in commercial matters could cause. In contracts involving technical issues, the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above, the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. The courts must also not interfere where such interference would cause unnecessary loss to the public exchequer. It was held as under: (SCC p. 501, paras 19-20) "19. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias.
32However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts, but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.
20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of 33 its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind, we shall deal with the present case."
(emphasis supplied)
14. In National High Speed Rail Corpn.
Ltd. v. Montecarlo Ltd. [National High Speed Rail Corpn. Ltd. v. Montecarlo Ltd., (2022) 6 SCC 401] , this Court sounded a word of caution while entertaining the writ petition and/or granting stay which ultimately may delay the execution of the mega projects. It was held as under : (SCC para 48) "48. Even while entertaining the writ petition and/or granting the stay which ultimately may delay the execution of the Mega projects, it must be remembered that it may seriously impede the execution of the projects of public importance and disables the State and/or its agencies/instrumentalities from discharging the constitutional and legal obligation towards the citizens. Therefore, the High Courts should be extremely careful and circumspect in exercise of its discretion while entertaining such petitions and/or while granting stay in such matters. Even in a case where the High Court is of the prima facie opinion that the decision is as such perverse and/or arbitrary and/or suffers from mala fides and/or favouritism, while entertaining such writ petition and/or pass any appropriate interim order, High Court may put to the writ petitioner's notice that in case the petitioner loses and there is a delay in execution of the project due to such proceedings initiated by him/it, he/they may be saddled with the damages caused for delay in 34 execution of such projects, which may be due to such frivolous litigations initiated by him/it. With these words of caution and advise, we rest the matter there and leave it to the wisdom of the Court(s) concerned, which ultimately may look to the larger public interest and the national interest involved."
15. In Uflex Ltd. v. State of T.N. [Uflex Ltd. v. State of T.N., (2022) 1 SCC 165] , this Court stated that the enlarged role of the Government in economic activity and its corresponding ability to give economic "largesse" was the bedrock of creating what is commonly called the "tender jurisdiction". The objective was to have greater transparency and the consequent right of an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India beyond the issue of strict enforcement of contractual rights under the civil jurisdiction. However, the ground reality today is that almost no tender remains unchallenged. Unsuccessful parties or parties not even participating in the tender seek to invoke the jurisdiction of the High Court under Article 226 of the Constitution. The Court held as under:
(SCC pp. 173-74 & 189-90, paras 2-3 & 42) "2. The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides.
The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance. [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517]
3. We cannot lose sight of the fact that a tenderer or contractor with a grievance can always seek damages in a civil court and thus, 'attempts by unsuccessful tenderers with imaginary grievances, 35 wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted'. [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] ***
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 [Tata Cellular v. Union of India, (1994) 6 SCC 651] 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 knows best as to what is suited in terms of technology and price for them."
(emphasis supplied)
16. In Galaxy Transport Agencies v. New J.K. Roadways [Galaxy Transport Agencies v. New J.K. Roadways, (2021) 16 SCC 808 : 2020 SCC OnLine SC 1035] , a three-Judge Bench again reiterated that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. It was observed as thus : (SCC paras 17-18 & 20) 36 "17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench [New JK Roadways v. UT of J&K, 2020 SCC OnLine J&K 733] ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word "both" appearing in Condition No. 31 of the NIT. For this reason, the Division Bench's conclusion that JK Roadways was wrongly declared to be ineligible, is set aside.
18. Insofar as Condition No. 27 of the NIT prescribing work experience of at least 5 years of not less than the value of Rs 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the Appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] , this Court noted : (SCC pp. 531-32, para
22) '22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions.
37Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(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 38 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.' ***
20. This being the case, we are unable to fathom how the Division Bench, on its own appraisal, arrived at the conclusion that the Appellant held work experience of only 1 year, substituting the appraisal of the expert four-member Tender Opening Committee with its own."
(emphasis supplied)
17. Therefore, the position of law with regard to the interpretation of terms of the contract is that the question as to whether a term of the contract is essential or not is to be viewed from the perspective of the employer and by the employer. Applying the aforesaid position of law to the present case, it has been the contention of Respondent 1 that the format for bank guarantee was not followed strictly by the State and that the relaxation given was not uniform, in that Respondent 1 was singled out. The said contention has found favour with the courts below.
... ... ... ...
21. Since the construction of road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the writ court while exercising its jurisdiction under Article 226 of the Constitution of India.
22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non- performance. In the tender in question, there were 15 39 bidders. Bids of 13 tenderers were found to be unresponsive i.e. not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was mala fide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.
23. In view of the above judgments of this Court, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work.
... ... ... ...
4026. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone."
(Emphasis supplied)
15. In the light of the facts obtaining in the case at hand and the judgments rendered by the Apex Court supra, this Court would not find any warrant to interfere with the notice inviting tender for the reason that the Court does not find any of the conditions being arbitrary, unreasonable or tender is floated to favour any particular tenderer. It is also germane to notice that it is 7 prospective tenderers who seek to challenge the conditions and on the other hand 90% of the tenderers are in acceptance of the conditions imposed in the tender, who are the impleading applicants.
16. For the aforesaid reasons, the petitions lacking in merit stand dismissed.
41Consequently, I.A.No.1/2022 filed in Crl.P.No.21876/2022 also stands disposed.
Sd/-
JUDGE bkp CT:MJ