Gujarat High Court
T.M.K Engineering vs Union Of India on 12 June, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/SCA/7323/2025 ORDER DATED: 12/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7323 of 2025
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T.M.K ENGINEERING
Versus
UNION OF INDIA & ORS.
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Appearance:
MR. RAJESHKUMAR S MISHRA(9946) for the Petitioner(s) No. 1
M R BHATT & CO.(5953) for the Respondent(s) No. 2,5
MR CHAITANYA S JOSHI(5927) for the Respondent(s) No. 1,3,4
MUNJAAL M BHATT(8283) for the Respondent(s) No. 2,5
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 12/06/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. In the first session, when the matter was taken up for hearing and it was pointed out to the learned advocate Mr.Rajeshkumar S. Mishra, appearing for the petitioner, that the prayers made in the writ petition have become infructuous since the post-opening of Price Bid of the tender on 21.05.2025, the process of Reverse Auction was already conducted between 22.05.2025 at 4:00 p.m. to 23.05.2025 at 4:00 p.m, and after the completion of the Reverse Auction process and due approval of the recommendation by the Tender Committee of IOCL, the subject Tender has been awarded to three technically and financially qualified bidders and GeM contracts have been issued in their favour on 24.05.2025; he requested that the matter to be placed in the second session to take instructions, as to whether he would withdraw or invite a reasoned order.
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2. In the second session, learned advocate Mr.Mishra requested for hearing the matter and sought a reasoned order.
3. Thus, despite the prayers made in the writ petition having become ineffectual and in light of the settled proposition of law, about restricted interference of the Courts in contractual matters, and looking to the stage of the present matter, coupled with the fact that three successful bidders are not the parties to the writ petition; the learned advocate Mr.Mishra has pressed for a reasoned order.
4. The respondents have also annexed the contract dated 24.05.2025 in favour of Ambedkar Construction, Kalinga Insulation & Radiant Hitech Engineering Private Limited. The respondent no.2 in its affidavit dated 26.05.2025, had categorically made a statement that three successful bidders may be made party respondents. This fact was also pointed out to learned advocate Mr.Mishra, and it was conveyed to him that no orders can be passed in their absence, but still he insisted for a reasoned order. When it was pointed out by this Court to the learned advocate Mr.Mishra, that the petitioner can avail and alternative remedy, however, our suggestion is also turned down.
5. During the course of the hearing, it was noticed by us that in fact, the petitioner has tried to improve upon the case from the original case, which has been canvassed in the memo of the petition.
6. The writ petition was filed with the following prayers : -
"25. b) Your Lordships may be pleased to issue appropriate writ of certiorari and/or any other appropriate writ, order or Page 2 of 10 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Mon Jun 16 2025 Downloaded on : Mon Jun 16 22:08:40 IST 2025 NEUTRAL CITATION C/SCA/7323/2025 ORDER DATED: 12/06/2025 undefined direction to the respondent authorities to quash and set aside the communication at Annexure A and thereby qualify the applicant to bid the Bid Number GEM/2025/B/5921568 on 12.02.2025 bearing tender number 9030C25A42 (Annexure B) and thereby directions to the respondents to consider the case of the applicant in the above-mentioned bid;
c) Your Lordships may be pleased to issue appropriate writ or other appropriate writ, thereby qualify the applicant to bid the Bid Number GEM/2025/B/5921568 on 12.02.2025 bearing tender number 9030C25A42 (at Annexure B) and thereby directions to the respondents to consider the case of the applicant in the above-mentioned bid.
7. We expected from the learned advocate Mr.Mishra, appearing for the petitioner to be fair to this Court and point out the legal precedent set by the judgments of the Supreme Court, however instead of pointing out the law, he pointed out the various clauses of the Bid Document and also the inter se communications. He has not applied hs mind as to whether in view of the subsequent development of award of work order to three bidders, as to whether the prayers made in the writ petition would survive or not. We had tendered the Apex Court judgements to him, but he has not made any effort to peruse the same.
8. Learned advocate Mr.Mishra, appearing for the petitioner has submitted that initial query raised by the respondent was itself illegal and unwarranted as the writ petitioner had already supplied the certificate dated 14.02.2025 at page No.36 pertaining to completion of the work by the sub-contractors.
9. In the writ petition, it was alleged by the petitioner that in fact, he did not receive any SMS or mail, either from the respondents or from the GeM Portal intimating about the query Page 3 of 10 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Mon Jun 16 2025 Downloaded on : Mon Jun 16 22:08:40 IST 2025 NEUTRAL CITATION C/SCA/7323/2025 ORDER DATED: 12/06/2025 undefined and when he came to know about the same, he further supplied the fresh Completion Certificate dated 14.02.2025 at page No.130.
10. Thus, initial case in the memo of the writ petition was that the petitioner was never informed either by the IOCL or GeM about the query raised by the respondents pertaining to the completion certificate as mandated by the Bid Document. It is pertinent to note that when the matter was listed on 26.05.2025, before two days i.e. on 24.05.2025, the financial Bids were already open, however the petitioner did not disclose the same before the Court and in fact, the reply was filed by the respondents pointing out the same and the Court adjourned the matter before the regular Bench and the same has been listed today.
11. When the respondents filed the affidavit-in-reply pointing out that in fact, the petitioner, who was supposed to act in accordance with the recitals of General Terms and Conditions at page No.189, paragraph No.(c)(a) about keeping itself updated by visiting and logging-in and checking all notifications on their dashboard on a regular basis with respect to any information / event, including but not limited to bid/ reverse auction participation, price match etc., the petitioner in rejoinder came up with anentire new case. It is admitted by the learned advocate Mr.Mishra, appearing for the petitioner that the petitioner was lethargic in not visiting and logging-in and checking the notification from the GeM portal, but he has insisted that he was required to be heard. At page No.181, as pointed by the learned advocate Mr.Bhatt, which is the Page 4 of 10 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Mon Jun 16 2025 Downloaded on : Mon Jun 16 22:08:40 IST 2025 NEUTRAL CITATION C/SCA/7323/2025 ORDER DATED: 12/06/2025 undefined screenshot of the website of GeM portal indicates that the query was already posted in the portal, and it remained active from 25.03.2025 to 29.03.2025 i.e. 4 days, which is as per the condition of the Bid Document, however, the petitioner did not verify the same and the fresh completion certificate was produced by it only on 12.04.2025, after the window was closed. Though, the petitioner (at page 128) has produced the query posted by the Respondent no.2, it is pertinent to note that he has very conveniently did not annex the cover page, which mentions the date and stamp.
12. These facts are not disputed by the petitioner. Despite pointing out these facts, learned advocate Mr.Mishra, further pointed out the provisions of the Bid Document, more particularly, Clause 24(xxxii)(d)(iii) and has submitted that the initial query was ill-founded as the petitioner was not required to further produce the certificate, which has been produced at page No.130 and whatever the earlier certificate, which was produced at page No.36 was appropriate.
13. A bare perusal of both the certificates at page No.36 and page No.130 reveal that the initial certificate dated 14.02.2025 at page No.36, does not bear the certificate of Worley Services India Private Limited, which is Project Management Consultant of respondent no.2-Owner. It is not in dispute that end user / owner / Consultant is the respondent - IOCL. If it is the case of the petitioner that the former certificate was in accordance with the tender specification, then there was no need for him to produce the second certificate at page no.130.
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14. At this stage, we may incorporate the requirement of the certificate as per Clause 24(vii) at page No.27, which is required to be produced as per Clause 24(xxxii)(d)(iii) of the Bid Document. The same is as under : -
"24. (vii) In case of Sub-contract works, the bidder is also required to submit a Certificate from the end user/Owner / Consultant of the Owner stating that the main contractor has intimated them about the engagement of sub-contracting OR have been allowed/ permitted as a sub-contractor.
In case any bidder submits work order and completion certificate of any executed contract where the bidder had worked as a leader / member of Joint Venture / Consortium / Joint Bidder, the work value shall be worked out as per the percentage share of the bidder in the JV/Consortium/Joint bidding agreement. Further in case the bidder had executed only a certain portion of the composite job through such agreement, his experience shall be counted for that particular portion of the job executed by him only, as specified in the JV/ consortium/joint bidder agreement. For such cases, in addition to work order and completion certificate(s), bidder will also submit copy of JV/consortium/joint bidder agreement and work order & completion certificate(s) has to be issued in the name of such JV/consortium/Joint bidder OR in the name of the Leader with brief details of JV/consortium / joint bidder specified in the work order.
15. Learned advocate Mr.Mishra, has stressed upon the said provision. A bare reading of the aforesaid provision would reveal that the initial certificate dated 14.02.2025, which was produced by the petitioner does not fulfill the requirement of the aforesaid clauses and when he realized that such mistake was committed, a fresh certificate was produced by him, later on i.e. on 12.04.2025 beyond the specified period.
16. At this stage, we may refer to the decision of the Supreme Court in the case of Tata Motors Vs. The Brihan Mumbai Electric Supply & Transport Undertaking (BEST) And Others, 2023 SCC Online SC 671.
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"47. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is : Whether the High Court after upholding the disqualification of TATA Motors from the Tender was justified in undertaking further exercise to ascertain whether EVEY also stood disqualified and that BEST in its discretion may undertake a fresh tender process?
48. 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 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. 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. (See: Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489)"
17. The Supreme Court has cautioned that 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 Page 7 of 10 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Mon Jun 16 2025 Downloaded on : Mon Jun 16 22:08:40 IST 2025 NEUTRAL CITATION C/SCA/7323/2025 ORDER DATED: 12/06/2025 undefined beyond our domain. It is further recorded that the Courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder and in fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract.
18. In the case of Tata Cellular Vs. Union of India, (1994) 6 SCC 651, the Supreme Court has prescribed the limitations relating to the scope of judicial review of administrative decision and exercise powers under awarding the contract. The same is as under : -
"94. The principles deducible from the above are : (1) The modem 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, 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.
19. In the case of N.G. Project Limited Vs. Vinodkumar Jain and others, (2022) 6 SCC 127, the Supreme Court has held as under : -
"23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of Page 8 of 10 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Mon Jun 16 2025 Downloaded on : Mon Jun 16 22:08:40 IST 2025 NEUTRAL CITATION C/SCA/7323/2025 ORDER DATED: 12/06/2025 undefined 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 com- plying 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 malafide 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."
20. Thus, the Supreme Court has cautioned that the Court should refrain from interfering in the grant of contractual matters, but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. In the present case, such suggestion made by us is also ignored by learned advocate Mr.Mishra.
21. Thus, looking to the overall approach of the petitioner and the stage of litigation, the Court cannot interfere with the decision in awarding the contracts to three bidders, more particularly in their absence.
22. Accordingly, the present writ petition stands rejected with exemplary costs.
23. We had expected from learned advocate Mr.Mishra, who is an officer of the Court, to be fair to the proceedings. We are Page 9 of 10 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Mon Jun 16 2025 Downloaded on : Mon Jun 16 22:08:40 IST 2025 NEUTRAL CITATION C/SCA/7323/2025 ORDER DATED: 12/06/2025 undefined constrained to observe that unnecessarily valuable judicial time of this Court, which could have been utilized for hearing of other deserving matters, has been consumed. The conduct of the petitioner, in pressing a matter of which the relief prayed has become ineffectual, reflects a casual and irresponsible approach to the process of law. Such actions not only delay the administration of justice but also burden the judicial system. Accordingly, by way of deterrence and to compensate for the wastage of judicial time, cost of Rs.50,000/- (Rupees Fifty Thousand only) is imposed upon the petitioner. To be deposited with the Gujarat High Court Legal Services Authority within two weeks from the receipt of a copy of this order.
Sd/-
(A. S. SUPEHIA, J) Sd/-
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