Khushal Singh Adhikari vs State Of Uttarakhand & Others on 12 May, 2022

[Cites 38, Cited by 0]

Uttarakhand High Court

Khushal Singh Adhikari vs State Of Uttarakhand & Others on 12 May, 2022

Bench: Sharad Kumar Sharma

                                                           Order Reserved on: 19.04.2022
                                                           Order Delivered on: 12.05.2022

                  IN HIGH COURT OF UTTARAKHAND
                            AT NAINITAL
                      Writ Petition No.2371 of 2021 (M/S)

Khushal Singh Adhikari                                                        .....Petitioner
                                              Vs.

State of Uttarakhand & others                                                 ...Respondents

Advocate: Mr. Shobhit Saharia, Advocate for the petitioner.
         Mr. T.S. Phartiyal, Addl. C.S.C. for the State of Uttarakhand.
          Mr. Shailendra Singh Chauhan, Advocate for respondent nos.2 to 4.
         Mr. Hari Om Bhakuni, Advocate for respondent no.5.

Hon'ble Sharad Kumar Sharma, J.

The stage of the proceedings of the writ petition, at which this Court is called upon to consider the stay vacation application, for the purposes of scrutinizing the veracity of the interim order dated 18.11.2021, which has been passed by the court in a contractual matter, where it effects the Work Package No.07-08 for Stage II work of motor road from Rati Ghat to Budhlakot, is required to be considered, as to whether at all there could be a stay of the tendering process, by virtue and as a consequential effect of which, would be that the entire work of a project for laying down the roads in the hill areas has been kept at a halt.

2. This Court has had to refer to each of the elaborate arguments, which has been extended by the learned counsels, for the petitioner, as well as, that of the respondents, wherein the counsel for the petitioner has rather contended, that grant of an interim order in the instant case was imminent because in the absence of the same it would have completely rendered the lis itself infructuous, wherein in the writ petition the petitioner has put a challenge to the order of 30.11.2011, as uploaded 01.11.2021, which was passed by the respondents employer rejecting the technical bid of the petitioner, in the tendering process which has been initiated as a consequence of the invitation of bids in pursuance to the publication Reference No. 1421/11-02/(XIX) ITCO/ URRDA/21 dated 01.09.2021.

3. It becomes inevitable for this Court to avoid to consider the backdrop, though in a precise manner, to answer the argument which has been extended by the learned counsel for the petitioner. The petitioner has submitted, that it is a sole proprietorship firm, which has been registered, as an A class contractor with the PWD Department and is engaged in the work of construction of roads and as per the invitation of bids by NIT dated 01.09.2021, issued by URRDA in respect of the aforesaid work package. The petitioner submitted, that as per the tender summary report of 9th October 2021, when it was uploaded by the respondents, the bid of the petitioner along with the seven other bidders were held to be technically responsive in terms of Clause 22.5 of the standard bidding document.

4. The petitioner submits, that once the petitioner's bid has been declared as to be a technically responsive bid by an order of 09.10.2021 in that eventuality the impugned action, which has been taken by the respondents on the basis of a private complaint, which was submitted by the respondent no.5, herein on 13.10.2021, whereby while taking a decision on the same, the petitioner's bid was technically held to be non-responsive by the order dated 01.11.2021, for the grounds which has been mentioned in the impugned order. The petitioner had submitted, that while the objections which were raised by the private respondent no.5, to the bid submitted by the petitioner and after its declaration as to be technically viable, the petitioner submitted in the reply dated 14.10.2021, while replying to show cause dated 13.10.2021 that as per the standard bidding document Section 2, which was an instruction to the bidders and the appendix attached to the standard building document in its ITB 4.4 B)(b)(i), which is extracted hereunder:-

"(4.4.B)(b)(i) The key equipments for road works and field testing laboratory Road Works are:

For Road works"

5. He has submitted that he has placed on record the papers of three "tractors" which were required to be furnished by the prospective bidders, as one of the pre-condition to be full filled in order to establish the availability of the required technical equipment, which would be required for the purposes of 3 execution of the work of construction of road, as covered by the bidding process adopted by the respondents.

6. A very interesting distinction has been carved out by the counsel for the petitioner, that if the standard bidding document itself is taken into consideration, which stipulated that the bidder has to provide the details of "tractor", in fact as per the terms of the standard bidding document particularly that as contained under Clause 4.4 B(b)(i) for Stage II work, it mentions that the technical equipment which a contractor is required to have for Stage 2 work with which we are concerned in the instant case, it included the following implements which are required to be possessed by the tenderer.

"For Stage-II Works Hydraulic Excavator 70 HP-1 Nos.

Air Compressor 140 CF-1 Nos.

Concrete Mixer 0.30 Cum-1 No. Concrete Vibrator 1 HP-2 Nos.

Tipper 3 Cum-4 Nos.

Water Tanker 3 KL-3 Nos.

Tractor-3 Nos.

Road Roller-3 Nos.

Mini Hot Mix Plant/MIXOL Batteries-1 No."

7. The counsel for the petitioner has submitted that on the objection raised by respondent no.5 to the following effect:-

"1 Khusal Singh Adhikari }kjk ist u0-166] 168 tks VªsDVj yxk;s x, gSa] dsoy dz`f"kZ dk;Z gsrq gh iaftd`r gSaA tks ,d xSj ifjogu okgu gSA The Central Motor Vehicles Rules 1989 (chapter 1) ds vuqlkj ftldk mi;ksx O;kolkf;d ,oa vU; dk;Z gsrq ugha fd;k tk ldrk gS layXu &The Central Motor Vehicles Rules 1989 (chapter 1 (2B)"

Contending thereof that the documents filed in support of the availability of three "tractor" with the petitioner, since the "tractor" which were shown in the bidding documents, were registered as an agricultural "tractor", they would not fall to satisfy the pre conditions of Clause 4.4 (B)(b)(i) of the standard bidding document. The counsel for the petitioner submitted, that since the standard bidding document itself did not classify the "tractor", it has had to be a "tractor", which is being registered, as to be utilized as an agricultural implement or a "tractor" which is to be utilized for a 4 commercial activities, since has it not being distinguished in the standard bidding document, as such supplying of the documents in relation to the three "tractors" irrespective of the fact, that whether it has been registered as an agricultural implement or not, will have no bearing, because the employer while publishing the standard bidding document, inviting the tenders ought to have classified in same, in order to enable the contractor to satisfy the condition, which had constituted to be the reason for rejecting the successful bid of the petitioner, that the tractor since was registered as an agricultural tractor, it cannot be read in parlance to be a "tractor" to be utilized for commercial activities due to which he has been now rendered non-suited.

8. The counsel for the petitioner submitted that if the impugned decision which is under challenge is taken into consideration in fact the reasons given therein was only "rejected". This would be apparent from the entry no.5 of the document Annexed as (Annexure 6) to the writ petition (pg 158). The counsel for the petitioner had submitted that under the Motor Vehicle Act of 1988 the "tractor" has been defined under Sub Section (44) of Section 2 of the Act which is extracted hereunder:-

"(44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller;"

9. In fact, what he contends that in view of the definition of a "tractor" given therein, it only means a Motor Vehicle, which in itself is not constructed contract not for the purposes of carrying any load, other than that the equipment which are attached to it, which is used for the purposes of propulsion and hence he submits, that once the tractor has been defined as to be a Motor Vehicle, which is to be utilized only for the purposes of propulsion, in that eventuality the distinction which has been carved out for rejecting the petitioner's technical bid would not be a satisfactory ground, because the Motor Vehicle Act itself was not carving any distinction as such in the agriculture "tractor" or the commercial "tractor", which has constituted as to be the reason for objection and also for the reasons of rejection of the technical bid of the petitioner, despite of having been declared as to be a successful bidder.

10. He further substantiate his argument, from the context of the provisions contained under Central Motor Vehicle Rules of 1989 wherein under Sub Section (b) of Section 2, the term "agricultural tractor" has been independently defined which is extracted hereunder:-

"(b) "agricultural tractor" mean any mechanically propelled 4-

wheel vehicle designed to work with suitable implements for various field operations and/or trailers to transport agricultural materials. Agricultural tractor is a non-transport vehicle;

(c) "agricultural trailer" means a trailer generally left uncovered with single/double axle construction which is coupled to an agricultural tractor by means of two hooks and predominantly used for transporting agricultural materials;]"

11. The said Rules in its Sub Rule (c) of Rule 2 independently defines the agricultural trailer, meaning thereby the agricultural trailer, would be an attachment to the agricultural "tractor" for the purposes of carrying a load, by means of hooks, which would be predominantly used for transporting an agricultural material. Hence the petitioner submits that since in the standard bidding document itself, was not creating any distinction as such as to what the "tractor" would actually mean, as for the term used therein, it cannot now be distinguished to be read, that the document which was required to be submitted by the contractor was to be in relation to a commercial "tractor" or an agricultural tractor. Hence, he submits that since the inter-se relationship between the employer and the petitioner bidder, were being governed by the terms of the standard bidding document, it cannot be enlarged or read to the contrary, and that too on the complaint of private respondent no.5, in the context that the documents submitted for vehicle, which has been registered as an agricultural "tractor", cannot be read in parlance to the commercial "tractor" for the purposes of making a contractor eligible to participate in the bidding process as per its ITB 4.4 (B)(b)(i).

12. The matter after being instituted before this Court on 10.11.2021 was heard by the Coordinate Bench and the Coordinate Bench vide it's order of 18.11.2021, had passed the following orders:-

"Till the next date of listing, status quo qua the package no.07-08 for Stage-II work of Motor Road from Ratighat to Budhlakote shall be maintained."

13. This Court feels it apt, to and rather it has been called upon too by the petitioner itself to answer his arguments, as to what would the exact term of "tractor", mean, which would be inferred in co-relation to the order of cancellation of his technical bid. In order to answer the argument extended there could be a multifaceted observations which could be made by the Court, but since it may have an ultimate bearing on the final decision of the writ petition itself, this Court is precautionarily confining it's observation only for the purposes of considering the aspect at this stage as to whether at all under such type of peculiar circumstances there could be an interim order in a tendering process keeping the contract of laying roads in hill areas at a halt.

14. In the third edition of advanced Law Lexicon by Justice Y.V. Chandrachud, the term "tractor" has been widely dealt with, which as per it's interpretation it has been observed, that if the provisions of Customs Tariff Act of 1975 is taken into consideration, in the context of the descriptions of "tractor" given in Schedule-1 therein, it would mean that it is a vehicle constructed essentially for hauling or pushing another vehicle, appliances or load, whether or not they are contained and prescribed with subsidiary provisions for the transport in connection with the main use of the "tractor" for the tools, seeds, fertilizers and other agricultural products.

15. The Courts have observed that in the context of the Central Excise Tariff Act of 1986, the word "tractor" would mean especially an implement, which is used as a machine or working tool designed for fitting to a carrier attached to it, as an inter-changeable equipment, merely classified it with the respective headings, even if presented with the "tractor" mounted with a trailer, to be used for agricultural purposes. But if the above correlated definition of the "tractor" is considered in the context of the definition of "tractor" given under Sub Section (44) of Section 2 of the Motor Vehicle Act, it is only a Motor Vehicle, which is constructed and designed, to carry any load, but by not in itself, but only by other equipments which has to be attached to it. In continuation thereto the interpretation of the term "tractor", as given in the book, "Supreme Court On Words and Phrases" by Justice M. L. Singhal, it is provided that the provisions of Section 2 Sub Section (44) of the Motor Vehicle Act, has not to be read in isolation, it has to be read with Sub Section (46) of 7 Section 2, as well as Sub Section (47) of Section 2 of the Motor Vehicle Act. The logic which has been given therein is that if Section 2 of Sub-Section (44) is considered in fact, the "tractor" would constitute and fall to be a Motor Vehicle as defined under Sub Section (28) of Section 2 of the Motor Vehicle Act. Since under the Motor Vehicle Act, the motor vehicle, the "tractor" and the trailer, attached to it for lifting the goods for which the "tractor" acts as a propulsion machine, the trailer has been independently defined under Sub Section (46) of Section 2 of the Act. The "tractor" would be falling to be a Motor Vehicle only, under the Act of 1988.

16. Therefore, it has been observed in the aforesaid book on interpretation of words and phrases by Justice M.L. Single, that one has to read the word Motor Vehicle', in the broadest prospective since keeping in mind that the provisions of the Act, which has been enacted in order to keep its checks and control over the motor vehicles, transport vehicles etc., and on a combined reading of the provision of the Motor Vehicle Act under Sub Section (28) of Section 2 and the "tractor" under Sub Section (44) of Section 2 of the Act, it would fall to be within the definition of "Motor Vehicle", which is mechanically a propelled vehicle, apt for the use upon roads irrespective of the source of it power and it includes a trailer too and hence the "tractor" is only to be treated, as to be an agricultural propulsion machine, which under the concept of automobile engineering, in itself independently is not a goods carrier. In that eventuality the independent legal interpretation of the "tractor", if it has to be read in consonance to the definition of an agricultural "tractor" defined under Central Motor Vehicle Rules, 1989, it would be an agricultural implement only. Thus from these perspectives, I am of the view that once the very intention and purpose of registration of vehicle under the Motor Vehicle Act, is a registration by way of an agricultural implement, and if it has been included in a standard biding document to be utilized for a commercial activity, it will not fulfil and satisfy the definition of "tractor" given in the standard bidding document in the case at hand, where it is intended to be used for performance of work under a contract, which is a non agricultural activity.

17. The argument of the learned counsel for the petitioner, that since under the standard bidding document, itself is silent and it cannot be elaborated 8 to be determined to exclude the "tractor" from being a commercial transport vehicle, is a concept, which is not acceptable by this Court because the standard bidding document, itself is not a statute within itself, to be a law as defined under Article 13, Sub Article (3) of the Constitution of India and will not have a precedence over the definition of an agricultural "tractor", given under the Motor Vehicle Rules of 1989. The High Court of Karnataka, the Coordinate Bench of the said court in a judgment reported in (2008) 3 T.A.C. 163 Divisional Manager, United Insurance Co. Limited vs. Akkavva and Another though in the matter of Motor Accident, the Single Judge in its para 2, 3, 5, 14, 15, 16 and 17 which are extracted hereunder:-

"2. The case of the respective claimants is that on 21.8.2001, when they, along with several others, were travelling in the tractor-cum- trailer No. KA-28/T-1170 & 1171 on Bagalakote-Alamatti Road, the vehicle, being driven in a rash and negligent manner by the driver concerned, turned turtle leading to the above named claimants suffering injuries along with many others, who were also in the said vehicle. The claim petitions filed by the claimants mentioned above came to be allowed and claimant Akkavva was awarded a sum of Rs. 75,500/- and the other claimant Neelawwa was awarded a sum of Rs. 26,250/- by the M.A.C.T. as compensation, putting the liability on the appellant to satisfy the award amounts.

3. The said order of the M.A.C.T. is called in question mainly on the ground that the tractor-cum-trailer, though insured with the appellant, the policy issued was one coming under the farmer's package and, therefore, the appellant is not liable to pay the compensation because the claimants were found travelling in the tractor-cum-trailer and the vehicle was not being used for agricultural purposes and farmer's policy did not cover the risk of any other persons except those mentioned in the policy itself. Therefore, the question of the Insurance Company becoming liable will not arise. Another ground urged in the appeals is that, as the vehicle was used as a transport vehicle to carry the claimants as well as many others, the insured ought to have obtained necessary permit as required under Section 66 of the Motor Vehicles Act, 1988 no such permit was obtained by the insured. The claimants and others, who were found travelling in the tractor-cum-trailer, were never the employees of the insured and, as such, the question of covering the risk of the claimants even under Section 147 of the Act will not arise. It is on these grounds, the awards of the Tribunal are being assailed in these two appeals.

5. The learned Counsel for the appellant contended that the tractor along with the trailer together constituted a goods vehicle and, as such, it was incumbent on the part of the insured to have 9 obtained necessary permit as required under Section 66 of the Act and no such permission was obtained in the instant case and, therefore, there is clear violation of the requirement of law on the part of the insured. The vehicle in question was used for the purpose other than agricultural purpose and therefore, no liability will fall on the insurer in view of the nature of the policy taken out by the insured. The risk of the claimants also is not covered by the policy in question and it is nobody's case that the two claimants herein were the employees engaged in the vehicle in question by the insured or that the two claimants were actually employed in the vehicle for the purpose of carrying out the agricultural operation. It is not the case of the claimants that they were actually employed in the vehicle. Therefore, Section 147 of the M.V. Act has no application to the case on hand. In support of the above submission, the learned Counsel place reliance on the decisions of the Apex Court reported in National Insurance Co. Ltd. v. Challa Bharathamma, 2004 A.C.J. 2094 : 2005 (1) T.A. C. 4 (S.C.); Ramashray Singh v. New India Assurance Co. Ltd., 2003 A.C.J. 1550 : 2003 (3) T.A.C. 3 (S.C.) and Natwar Parikh & Co. Ltd. v. State of Karnataka, 2006 A.C.J. 1 (S.C.) and also the decision of this Court in United India Insurance Co. Ltd. v. Hanamanthappa, 2006 A.C.J. 2794 (Kant.).

14. In the decision reported in National Insurance Co. Ltd. v. V. Chinnamma and Ors. reported in MANU/SC/0698/2004 :

AIR2004SC4338 , the Apex Court has observed that the Insurance Company will not be liable if vegetables are carried in a tractor for being transported to the market for sale and such an use of the vehicle cannot be termed as use of the tractor for agricultural purpose and hence the Court held that the vehicle was not used for agricultural purpose. In the very same decision at paragraph No. 15 of the judgment, it has been observed thus:

"(15) A tractor fitted with trailer may or may not answer the definition of 'goods carriage' contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus necessary is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables.

After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. Tractor and trailer, therefore, were not being used for agricultural purposes."

15. In another decision reported in New India Assurance Company Limited v. Sandepudi Mariyamma and Ors. 2004 A.C.J. 1692 (A.P.), High Court of Andhra Pradesh has referred to number of decisions concerning the policy issued in respect of agricultural purposes. After referring to several decisions, it has been held that when the policy covered the tractor-trailer with a condition to use for agricultural purposes only and the policy did not cover use of the vehicle for hire or reward, the insurance company will not be liable where the owner had given the vehicle for hire and it has been used for transporting slabs for construction house.

16. The effect of the above decisions is that a vehicle, which is insured for agricultural purpose, cannot be used for any other purpose and if so used in contravention of the policy taken, the insurance company will not be liable. Coming to the decisions referred to by the learned Counsel for the claimants as well as insured are concerned, the decision in M.F.A. No. 2545/2003 of this Court concerns a person travelling as a loader in the tractor cum trailer and therefore, the Court observed that the claimants are entitled for compensation as per the W.C. Act. At the same time, it was observed in the said decision at paragraph No. 6 that the insurer has not placed any evidence before the Court to show that it is an agricultural tractor-trailer. The facts therefore are different from the one with which we are concerned, because in the instant case, the policy Ex.R1 clearly indicates that the tractor-cum trailer was to be used only for agricultural purpose and for no other purpose.

17. As regards the decision reported in 1996 (1) K.L.J. 417 is concerned, that was a case in which the policy in question was not a policy of the nature that is taken out by the insured in the instant case. Therefore, referring to Rule 100(1) of the M.V. Act, 1989, this Court had held that the insurer cannot be absolved of liability to pay compensation as statutory requirement is to cover the risk of six employees apart from the driver. The said decision therefore, is not applicable to the case on hand. Similar is the situation in the case of Bhimavva and Ors. v. Shankar and Ors. in as much as in the said case, the Court held that the insurance company will be liable to the extent of liability under the W.C. Act in respect of employees travelling in the goods vehicle. Thus, we see the facts are quite different and it is not a case of a tractor cum trailer being used for agricultural purposes."

18. In the aforesaid, judgment, it had laid down that the "tractor" since being an agricultural implement, is coming under the farmers package, which was not being used for any agricultural purposes nor has been registered as such under the policy will not be treated as to be a commercial vehicle. Hence, the contention that merely because of an attachment of a trailer to the "tractor" to 11 carry the goods as such it was incumbent, that prior to an agricultural implement registered under the Motor Vehicle Act under Section 2 Sub Section (44), if it is being utilized for any commercial activity, it ought to have a prior permission of a permit required under Section 66 of the Motor Vehicle Act and if it is not so, the nature of the "tractor" trolley would be continued to be falling an agricultural implement and would be falling under the definition of agricultural "tractor" provided under the Rules of 1989. Since in the instant case the very bidding document which has been submitted by the petitioner, it was not a case that the "tractor" cum trolley was to be used for agricultural purposes. Hence, in the absence of there being any permit and a prior permission under Section 66 of the Motor Vehicle Act cannot be treated as to be a commercial vehicle and if it is being registered as an agricultural equipment, as objected by the private respondents in the present case, the petitioner's technical bid was required to be rejected on this context itself.

19. The Hon'ble Apex Court in a judgment reported in (2004) 8 Supreme Court Cases 697, National Insurance Co. LTD. vs. V. Chinnamma and Others , in its para 15 and 16, which are extracted hereunder:-

"15. Furthermore, a tractor is not even a goods carriage. The "goods carriage" has been defined in Section 2(14) to mean "any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods"

whereas "tractor" has been defined in Section 2(44) to mean "a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller".

The "trailer" has been defined in Section 2(46) to mean "any vehicle, other than a semi-trailer and a side car, drawn or intended to be drawn by a motor vehicle".

16. A tractor fitted with a trailer may or may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. It may be as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another 12 person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of the "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani (supra) and other decisions following the same, as the accident had taken place on 24-11-1991, i.e., much prior to coming into force of 1994 amendment."

20. In the aforesaid judgment of Chinnamma (supra) it has been observed that the "tractor", when it is registered and defined independently under the Central Rules of 1989, as to be an agricultural "tractor" it will not be a goods carrier, as it has been independently defined under Sub Section (14) of Section 2 of the Motor Vehicle Act and thus once the Act itself has given a different expression, that a goods carrier is an independent vehicle, defined under the Act and where the "tractor" has been independently defined under the Rules, as well as under the Motor Vehicle Act, under Section 2 of Sub Section (44) of the Act, it will not become a commercial vehicle or a goods carrier in itself and once it is not a goods carrier as would be apparent from the documents filed in support of his bidding document, it cannot be treated as to be a commercial implement or vehicle, which could be utilized for the purpose contrary to its registration, without a prior sanction under Section 66 of the Motor Vehicle Act.

21. In the peculiar facts and circumstances of the present case, this Court has also been called upon to venture into an aspect; as to whether at all, the writ courts under Article 226 of the Constitution of India, can grant an interim order in contractual matters, which may have a bearing on completely keeping the project at a halt indeterminate to public interest. In reply to it, the Court is of the view, that the issue has been consistently dealt with by the Hon'ble Apex Court in catena of judgments, some of them are being dealt with hereunder.

22. In order to elucidate, as to whether at all the interim orders could be granted in the matters pertaining to the work projects and particularly in relation 13 to the works related to the public interest and public convenience and that too in the context to laying down a road in the hill areas, it has been held by the Hon'ble Apex Court, that providing of a suitable roads in the hill areas is a fundamental right to the citizens of the area, as it's the only available mode of mobility of persons and goods, as it has been laid down in the judgments reported in AIR 1986 Supreme Court 847, State of Himanchal Pradesh and Another vs. Umed Ram Sharma and Others. Para 11 of the judgment is extracted hereunder:-

"11. It appears to us that in the facts of this case, the controversy lies within a short compass. It is well-settled that the persons who have applied to the High Court by the letter are persons affected by the absence of usable road because they are poor Harijan residents of the area, their access by communication, indeed to life outside is obstructed and/or prevented by the absence of road. The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in Article 21 of the Constitution and in the facts of this case read in conjunction with Article 19(1)(d) of the Constitution and in the background of Article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely throughout the territory of India and he has also the right under Article 21 to his life and that right under Article 21 embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. These propositions are well-settled. We accept the proposition that there should be road for communication in reasonable conditions in view of our Constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication."

23. The Hon'ble Apex Court has observed that lying down or providing of road in hill areas, is a fundamental right, than all efforts and an endeavours has to be made to ensure that the work relating to the lying down of road projects, are to be completed within a strict time frame, so that the public convenience may not be adversely affected for private commercial interests.

24. The Hon'ble Apex Court in a judgment rendered in SLP (C) No.1616 of 2022, Balaji Ventures Pvt. Ltd. vs. Maharashtra State Power Generation Company Ltd. & Anr, which too was in relation to a controversy arising out of the tendering process, where the challenge was given to a Clause 14 of a tender document and there was an interim order granted by the High Court. In para 5, of the aforesaid judgment, it has been observed that if the grant of an interim relief, virtually amounts to allowing of a writ petition at an interim stage, granting of an interim relief, has had to take into consideration, as to what would be the consequences of the tender process and which is required to be done under it, in case if the writ petition was ultimately dismissed at a later stage, and in such an eventuality such an exception has to be carved out, where if at all a controversy requires an adjudication on merits, the work project should not be kept in absence or at a halt and rather the Court should be conscious of the fact, that if as a consequence of the failure of the writ petition, the work is kept in abeyance, the alternative mode of enabling the petitioner to file an appropriate recourses for damages in case if he succeeds in the writ petition, would be the appropriate recourse available to the petitioner and no interim orders should be granted by the Courts in such matters. The relevant para 5 is extracted hereunder:-

"5. Before we consider the submission on behalf of learned counsel for the petitioner on merits, we would like to observe and disapprove and deprecate the grant of interim 4 relief by the High Court vide orders dated 14.12.2021 and 20.01.2022 respectively. The interim relief which was granted by the High Court was as such a final relief which could have been granted after deciding the matter finally. The High Court passed an interim relief directing that the petitioner shall be allowed to take part in the tender process without insisting to the impugned requirement or obtaining NOC from Vimla and to issue a corrigendum to the tender notice. Thus, by way of interim relief the High Court directed to ignore the tender clause which was under challenge that too at the interim stage virtually allowing the main writ petition. We disapprove and deprecate the grant of such interim relief virtually allowing the writ petitions at an interim stage. The High Court ought to have appreciated that if by way of interim relief, a tenderer/petitioner is permitted to participate in the tender process without insisting upon the tender clause which was under challenge and subsequently the writ petition is dismissed what would be the consequences. In the present case itself subsequently the writ petition has been dismissed. The question may arise what will be the consequences of the interim order by which the petitioner was permitted to take part in the tender process without insisting upon the impugned requirement by obtaining NOC from Vimla. Therefore, no such interim relief could have been passed by the High Court.

5. 1 Now so far as the impugned Judgment and order passed by the High Court dismissing the writ petitions is concerned, what was 15 challenged before the High Court was one of the tender conditions/clauses. The High Court has specifically observed and noted the justification for providing clause 1.12(V). The said clause was to be applied to all the tenderers/bidders. It cannot be said that such clause was a tailor made to suit a particular bidder. It was applicable to all. Owner should always have the freedom to provide the eligibility criteria and/or the terms and conditions of the bid unless it is found to be arbitrary, mala fide and/or tailor made. The bidder/tenderer cannot be permitted to challenge the bid condition/clause which might not suit him and/or convenient to him. As per the settled proposition of law as such it is an offer to the prospective bidder/tenderer to compete and submit the tender considering the terms and conditions mentioned in the tender document.

5.2 In the case of Silppi Constructions Contractors vs. Union of India, (2020) 16 SCC 489, it is observed in para 20 as under: "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 5 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." 5.3 In the case of Montecarlo Limited vs. National Thermal Power Corporation Limited, (2016) 15 SCC 272, it is observed and held that the tender inviting authority is the best person to understand and appreciate its requirement and tender documents, so long as there are no mala fides/arbitrariness etc. It is further observed and held that the Government must have freedom of contract and such action can be tested by applying Wednesbury principle and also examining whether it suffers from arbitrariness or bias or mala fides."

25. The Hon'ble Apex court in yet another judgment of 2022 SCC Online SC 111, National High Speed Rail Corporation Limited vs. Montecarlo Limited and Another, as rendered on 31.01.2022 in its para 15 & 16 has provided that rather a word of caution has been given to the writ courts, while granting a stay in a work contracts, which ultimately results into delaying 16 the execution of mega projects or the projects of a public interest. Para 15 & 16 of the said judgment is extracted hereunder:-

"15. Before we part, we deem it proper to express few words of caution to the High Courts while entertaining the writ petitions challenging the tender process midway and/or while interfering with the tender process in the contracts, more particularly, with respect to the contracts/projects funded by the foreign countries and with respect to the Mega project like the present one. Before entertaining the writ petition with respect to such Mega projects funded by the foreign countries, one has to appreciate that funds of such Mega projects by the foreign country is followed by a detailed discussion between the Prime Ministers of both the countries and to strengthen bilateral cooperation in the rail sector. The foreign country is ready to invest/fund such a huge amount on non- negotiated terms and the Bid Documents are prepared by the foreign financial agency/country in accordance with the latest version of the Standard Bidding Documents. These investments from developed nations are made on the basis of non-negotiated terms and conditions, where the sole discretion as to what would be the conditions of the investments and on what terms the contractors would be chosen to implement the project, vests with the investor foreign developed nation. Considering the special peculiarities of such foreign sovereign funded development contracts, which can be envisaged and exist only due to the availability of the investment and willingness of the foreign sovereign country to finance such infrastructure project, the said contracts assume the different characteristics. Therefore, there shall be different considerations so far as the judicial interference is concerned between the foreign funded contracts and the ordinary public works contracts funded from public exchequer. It is always to be borne in mind and as observed by this Court in the case of Asia Foundation and Construction Ltd. (supra), it is difficult for a developing country to go ahead with such a high cost project unless the developed country grant loan/subsidy and/or ready to fund such high cost projects, which are very important projects for developing country, more particularly, when the developed country is ready to fund a huge amount at a minimal concessional rate of interest and on suitable terms and conditions of repayment. It is also to be noted that any delay in execution of such a Mega project, which is very important project for the developing country like India may not be in the larger public interest and in the nation's interest. Such an interference by the Courts midway and delay in the projects like these which is funded by the foreign countries on bilateral mutual understanding/agreement by the developed country to a developing country may affect the future investments/funding. Many a times, such a delay in the execution of the project due to the intervention by the Courts may have cascading effect on the project cost and ultimately may increase the project cost and may impose heavy financial burden and lead to increased and unbudgeted expenditure. Therefore, while exercising the writ jurisdiction challenging the tender process midway and/or while entertaining the writ petition 17 challenging the award of contract with respect to such Mega projects, more particularly, when such Mega projects are funded by the foreign countries, the Courts have to bear in mind the following principles laid down by this Court in the case of Tata Cellular v. Union of India, 1994 6 SCC 651 in paragraph 94 as under:

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, 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.

Based on these principles we will examine the facts of this case since they commend to us as the correct principles.

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 18 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 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 concerned Court(s), which ultimately may look to the larger public interest and the national interest involved.

16. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court is clearly unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Present appeal is allowed accordingly. The original writ petition before the High Court filed by the original writ Petitioner-Respondent herein stands dismissed. No costs.

Pending application(s), if any, also stand disposed of."

26. The Hon'ble Apex Court has provided that even in the cases where a prima facie case is made out and even in the case where there is a prima facie perversity even then to the High Court should avoid to pass an interim order which could delay the projects of the public interest.

27. The Hon'ble Apex Court in a judgment of 2020 SCC Online SC 538, Rajasthan State Warehousing Corporation vs. Star Agriwarehousing and Collateral Management Limited and Another, in its para 10 and 12 has observed, that the writ courts, in the contract matters where the controversy is arising out of the appropriate interpretation to be given to the terms of the bidding document, the Court should ordinarily exercises a restraint in passing any interim orders in the contractual matters, it could only be considered to be granted where in a situation in the absence of grant of an interim order, it would be having a detrimental effect on the rights of the public; but since in the instant case, since grant of an interim order is rather detrimental to the public interest of the people belonging to the hill areas of being timely provided with suitable roads, which has already been held to be a right to life for the people of hills, as per the judgment of the Hon'ble Apex Court, referred to above, the stay of the projects of lying down of the roads should not be stayed by the High Court, because the contractor on being if successful in the writ petition can suitably be remunerated by the payment of the damages. Para 10 and 12 of the judgment are extracted hereunder:-

10. The question of grant of interim stay in contractual matters was examined by this Court in a judgment reported as Raunaq International Ltd. v. I.V.R. Construction Ltd. The Court held as under:

12. Therefore, we find that the grant of interim order which impinges upon the grant of contract by the Appellant is not in public interest that too without recording any reasons when the Writ Petition was dismissed by the Learned Single Judge."

28. The Hon'ble Apex Court almost dealing with a similar type of controversy, pertaining to the award of a tender, relating to the appellant therein who was a successful bidder had sought a writ questioning the proprietary of the bidding documents and the interpretation which was agitated to be given therein. It had laid down that in the matters of Raunaq Internationals Limited vs. I.V.R. Construction Ltd. and Others as reported in (1999) 1 Supreme Court Cases 492, para 13, 18 and 25 would be relevant which is extracted hereunder:-

"13. Hence before entertaining a writ petition and passing any interim orders in such petitions, the court must carefully weigh conflicting public interests. Only when it comes to a conclusion that there is an overwhelming public interest in entertaining the petition, the court should intervene.

18. The same considerations must weigh with the court when interim orders are passed in such petitions. The party at whose instance interim orders are obtained has to be made accountable for the consequences of the interim order. The interim order could delay the project, jettison finely worked financial arrangements and escalate costs. Hence the petitioner asking for interim orders, in appropriate cases should be asked to provide security for any increase in cost as a result of such delay, or any damages suffered by the opposite party in consequence of an interim order. Otherwise public detriment may outweigh public benefit in granting such interim orders. Stay order or injunction order, if issued, must be moulded to provide for restitution.

25. Therefore, when such a stay order is obtained at the instance of a private party or even at the instance of a body litigating in public interest, any interim order which stops the project from proceeding further must provide for the reimbursement of costs to the public in case ultimately the litigation started by such an individual or body fails. The public must be compensated both for the delay in implementation of the project and the cost escalation resulting from such delay. Unless an adequate provision is made for this in the interim order, the interim order may prove counterproductive."

29. In the aforesaid judgments, which the Hon'ble Apex Court has provided that the High Courts before entertaining a writ petition and passing any interim orders, in such petitions relating to the work contractors, under a tender, directly which involves a public exchequer, which involves a public interest, and which may entail a delay in enforcement of a project of a public importance, the Hon'ble Apex Court has consistently observed that the High Courts, while granting an interim order, has to weigh the conflict between the public interest and the conflict between a private interest and the intervention at an interim stage should only be called for when there are overwhelming public interest, which has a prevailing effect over a private interest.

30. The Hon'ble Apex Court in yet another judgment, as reported in AIR 2019 Supreme Court 3327, Caretel Infotech Ltd. vs. Hindustan Petroleum Corporation Limited and Ors. had observed that the writ courts under Article under 226 of the Constitution of India, has got no authority as such to improve upon the tender document or to introduce a term in order to make it more reasonable or fair to the prospective tenderer, who intends to participate in the tendering process. In fact the author of the tender is the best person to understand and appreciate the requirements of the tender document, which in the instant case has been rightly appreciated in the impugned order, while observing that the "tractors" mentioned in the standard bidding document would definitely only mean "a commercial tractor" and not an "agricultural tractor" as defined under the Rules of 1989. The aforesaid principles had been widely laid down in para 36 to 42 of the said judgment, which are extracted hereunder:-

"36. We consider it appropriate to make certain observations in the context of the nature of dispute which is before us. Normally parties would be governed by their contracts and the tender terms, and really no writ would be maintainable Under Article 226 of the Constitution of India. In view of Government and Public Sector Enterprises venturing into economic activities, this Court found it appropriate to build in certain checks and balances of fairness in procedure. It is this approach which has given rise to scrutiny of tenders in writ proceedings Under Article 226 of the Constitution of India. It, however, appears that the window has been opened too wide as almost every small or big tender is now sought to be challenged in writ proceedings almost as a matter of routine. This 21 in turn, affects the efficacy of commercial activities of the public sectors, which may be in competition with the private sector. This could hardly have been the objective in mind. An unnecessary, close scrutiny of minute details, contrary to the view of the tendering authority, makes awarding of contracts by Government and Public Sectors a cumbersome exercise, with long drawn out litigation at the threshold. The private sector is competing often in the same field. Promptness and efficiency levels in private contracts, thus, often tend to make the tenders of the public sector a non-competitive exercise. This works to a great disadvantage to the Government and the Public Sector.

37. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and Anr., this Court has expounded further on this aspect, while observing that the decision making process in accepting or rejecting the bid should not be interfered with. Interference is permissible only if the decision making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have reached such a decision. It has been cautioned that Constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision making process would not suffice.

38. Another aspect emphasised is that the author of the document is the best person to understand and appreciate its requirements. In the facts of the present case, the view, on interpreting the tender documents, of Respondent No. 1 must prevail. Respondent No. 1 itself, appreciative of the wording of Clause 20 and the format, has taken a considered view. Respondent No. 3 cannot compel its own interpretation of the contract to be thrust on Respondent No. 1, or ask the Court to compel Respondent No. 1 to accept that interpretation. In fact, the Court went on to observe in the aforesaid judgment that it is possible that the author of the tender may give an interpretation that is not acceptable to the Constitutional Court, but that itself would not be a reason for interfering with the interpretation given. We reproduce the observations in this behalf as under:

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.

39. We may also refer to the judgment of this Court in Nabha Power Limited (NPL) v. Punjab State Power Corporation Limited (PSPCL) and Anr., authored by one of us (Sanjay Kishan Kaul, J.).

The legal principles for interpretation of commercial contracts have been discussed. In the said judgment, a reference was made to the observations of the Privy Council in Attorney General of Belize v. Belize Telecom Ltd. as under:

16. Before discussing in greater detail the reasoning of the Court of Appeal, the Board will make some general observations about the process of implication. The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended...

....................

19......In Trollope & Colls Ltd. v. North West Metropolitan Regional Hospital Board Lord Pearson, with whom Lord Guest and Lord Diplock agreed, said:

the court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves, however desirable the improvement might be. The court's function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different possible meanings: the clear terms must be applied even if the court thinks some other terms would have been more suitable. An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, though tacit, formed part of the contract which the parties made for themselves.

40. Nabha Power Limited (NPL)2 also took note of the earlier judgment of this Court in Satya Jain (Dead) Through L.Rs. and Ors.

v. Anis Ahmed Rushdie (Dead) Through L.Rs. and Ors. (2013) 8 SCC 131, which discussed the principle of business efficacy as proposed by Bowen, L.J. in the Moorcock (1889) LR 14 PD 64 (CA). It has been elucidated that this test requires that terms can be implied only if it is necessary to give business efficacy to the contract to avoid failure of the contract and only the bare minimum of implication is to be there to achieve this goal. Thus, if the 23 contract makes business sense without the implication of terms, the courts will not imply the same.

41. The judgment in Nabha Power Limited (NPL)2 concluded with the following observations in para 72:

72. We may, however, in the end, extend a word of caution.

It should certainly not be an endeavour of commercial courts to look to implied terms of contract. In the current day and age, making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is even preceded by opportunities of seeking clarifications and doubts so that the parties know what they are getting into. Thus, normally a contract should be read as it reads, as per its express terms. The implied terms is a concept, which is necessitated only when the Penta-test referred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads. We have not really read into it any 'implied term' but from the collection of clauses, come to a conclusion as to what the contract says. The formula for energy charges, to our mind, was quite clear. We have only expounded it in accordance to its natural grammatical contour, keeping in mind the nature of the contract.

42. We have considered it appropriate to, once again, emphasise the aforesaid aspects, especially in the context of endeavours of courts to give their own interpretation to contracts, more specifically tender terms, at the behest of a third party competing for the tender, rather than what is propounded by the party framing the tender. The object cannot be that in every contract, where some parties would lose out, they should get the opportunity to somehow pick holes, to disqualify the successful parties, on grounds on which even the party floating the tender finds no merit."

31. Recently the Hon'ble Apex Court in a judgment rendered in Civil Appeal No.1846 of 2022, M/s N.G. Projects Limited vs. M/s Vinod Kumar Jain & Others, as rendered on 21.3.2022, in its para 16 and 17 had laid down that while making reference to a judgment pertaining to the effect of interpretation of the procedural impropriety, which was the only scope left open to be ventured into as per the judgment of the Tata Cellular vs. Union of India reported in (1994) 6 Supreme Court Cases 651, particularly that as per the stipulations provided in para 77 therein while considering the implications of Tata Cellular's judgment and its comparative analysis with the judgment reported in (2016) 16 Supreme Court Cases 818, Afcons Infrastructure 24 Limited vs. Nagpur Metro Rail Corporation and Another (Supra) as well as that while following to the principles of Silppi Construction Contractors vs. Union of India 2019 SCC Online SC 1133. The ultimately inference, which has been drawn by the Hon'ble Apex Court, in the recent judgment, in fact, it had concluded in para 21 and 22 that since the construction of road is an infrastructure project, the writ Court should refrain itself to stay the construction of infrastructure projects and the bidders, if at all be permitted to pickup holes to disqualify the successful bidder on the ground on which even the party floating the tender finds no merit. It has rather laid down that an unnecessary and casual scrutinization of the minute details of the tenders even if it is contrary to the view of the tendering authority, if it installs the awarding of the contract resulting into a cumbersome and a long drawn litigation, the interpretation ought to be an award which could be suitably remunerated by payment of the damages. Relevant paragraphs 10, 16, 17, 21, 22 and 23 are extracted hereunder:-

"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 India 3 and to act as appellate authority over the decision of the State. This Court in Tata Cellular held as under:

"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 3 (1994) 6 SCC 651 5 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.

xx xx xx

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 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
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. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696] , 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".

                      xx                  xx
        xx
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, 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 26 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.

Based on these principles we will examine the facts of this case since they commend to us as the correct principles."

16. In Galaxy Transport Agencies v. New J.K. Roadways, 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:

9 2020 SCC OnLine SC 1035

"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 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 N.I.T. 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 N.I.T. 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, (2007) 14 SCC 517, this Court noted:

"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 27 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 15 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 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."

xx xx xx

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."

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 16 present case, it has been the contention of respondent No. 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 No. 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 19 non-performance. In the tender in question, there were 15 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 malafide. 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 presentday 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 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."

32. The same principles has been enunciated in para 15 and 16 of the Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation and Another (supra) which is extracted hereunder:-

"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.

16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court."

33. Thus on the basis of the aforesaid principles, it had been settled, that the constitutional Courts may defer to interpret the tender document and the Constitutional Court must only ventured into, where there is a malafide or perversity and no interim orders could be granted while interfering in the tender matters by the writ courts under Article 226 of the Constitution of India.

34. The similar emphasis has been laid down by the Hon'ble Apex Court in the matters of Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers vs. New J.K. Roadways, Fleet Owners and Transport Contractors and others reported in (2020) SCC Online SC 1035 in its para 14 to 19. In this matter too the Hon'ble Apex Court while referring to the judgments of Silppi Construction and Afcons Infrastructure (supra) in its para 14, 15 and 16 has laid down that what would be the essence of considering the implications of grant of an interim order, where a judicial review to the administrative action is intended to be prevented only when there is an arbitrary irrationality or unreasonableness since that not being the case at hand, the public projects could not have been stayed by the interim orders passed by the court. The relevant para 14 to 19 are extracted hereunder:-

"14. In a series of judgments, this Court has held 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. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., 2016 (16) SCC 818, this Court held:

"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.

(page 825) (emphasis supplied)

15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha, under the heading "Deference to authority's interpretation", this Court stated:

"51. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes.

52. In the present facts, it is clear that BCCL and India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them.

53. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCL's interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the Appellant committed illegality.

(emphasis supplied)

16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, this Court held as follows:

"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 31 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)

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 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 N.I.T. 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 N.I.T. 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, (2007) 14 SCC 517, this Court noted:

"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 32 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 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.

(pages 531-532) (emphasis supplied)

19. Similarly, in Montecarlo Ltd. v. NTPC Ltd., 2016 (15) SCC 272, this Court stated as follows:

"26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third- party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction 33 stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But 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.

35. Hence for the reasons and logic as aforesaid, this Court is of the view that since the case at hand relates to laying down of public road in the hills which is a public project for the benefit of public at large and that too for and on the basis of the wrongful interpretation, which has been sought to be argued by the counsel for the petitioner foundationed on a minor distinction which was attempted to be drawn to the interpretation of the word "tractor" in contravention to its statutory implications already considered above and decided by the competent Courts, including the Hon'ble Apex Court; the argument of the counsel for the petitioner that since the STB document is not classifying the term "tractor", as to be an agricultural vehicle or a commercial vehicle for all practical purposes in view of the interpretation given to the extracts, which has been referred to above from Law Lexicon and the judicial interpretation of Justice M.L. Single, the law determining the term "tractor" as to be an agricultural implement would prevail over the term given in STB document. Hence, the argument cannot be accepted by this Court at this stage. Consequently, for the aforesaid reasons, this Court is of the view that continuing of the interim order granted by this Court, since being contrary to the public 34 interest, the same cannot be permitted to persist, installing the public project, hence the same is hereby vacated.

(Sharad Kumar Sharma, J.) 12.05.2022 Arti

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