Karnataka High Court
South India Corporation Limited vs The Karnataka Power Corporation ... on 28 May, 2002
Equivalent citations: ILR2002KAR3038, 2003(2)KARLJ321, AIR 2003 (NOC) 25 (KAR), 2002 AIR - KANT. H. C. R. 2012, (2003) 2 KANT LJ 321, (2002) 3 ICC 711
Author: N. Kumar
Bench: N. Kumar
JUDGMENT N.K. Jain, C.J.
1. Writ Appeal No. 2244 of 2002 is filed by South India Corporation Limited and Writ Appeal No. 1999 of 2002 is filed by Nair Coal Services Limited, against the common order dated 15-2-2002 (Nair Coal Services Limited, Nagpur and Anr. v Karnataka Power Corporation Limited, Bangalore and Ors., 2002(3) Kar. L.J. 101 : ILR 2002 Kar. 2575) passed by the learned Single Judge dismissing the writ petitions filed by the appellants by not interfering with the tender notification dated 8-6-2001.
2. The necessary brief facts are, the 1st respondent-Karnataka Power Corporation Limited (for short 'KPCL'), a Karnataka State Government Undertaking, issued a tender notification dated 8-6-2001 inviting tenders for the appointment of transport agencies for movement of coal from Singareni Collieries Company Limited (SCCL), Western Coalfields Limited (WCL) and Mahanadi Coalfields Limited (MCL) to Raichur Thermal Power Station (RTPS). The said notification invited tenders from reputed coal transport agencies, liaisoning and supply agents, for the purpose of awarding contract for a period of three years for the movement of coal from the three collieries mentioned above to Raichur Thermal Power Station by all rail mode. Annexure-A to the writ petitions is the copy of the tender notification. Clause 5 of the said tender notification, which is impugned in the writ petitions, is as under.--
"5. Tenderers should have the following qualifying requirements:
(i)(a) Should have previous experience of three years in supervising loading of coal rakes at pitheads/collieries in India and monitoring the movement of coal rakes to thermal power station or any industrial unit by rail and should have handled a minimum quantity of five million tonnes of thermal coal/coke to not more than two customers, in each of the past three years (i.e., 1998, 1999 and 2000).
(b) Should have experience in co-ordinating with railways at pitheads/collieries and also in payment of railway freight on behalf of industrial units/power utilities. They should have remitted on their own, the railway freight payment (per year) in the last three years for booking of coal rakes at pitheads/collieries, as indicated below:
Eligibility for the work of SCCL: Rs. 30.00 Crs.
Eligibility for the work of WCL: Rs. 15.00 Crs.
Eligibility for the work of MCL: Rs. 15.00 Crs.
Experience in mere remittance of freight through demand drafts/pay orders/advance payments received from principals or operating L/C or Bank guarantees of principals shall not be counted.
The bidder may apply for one or more work by producing the freight remittance certificate as indicated above.
(c) The agency should be financially sound and capable of executing high value contracts. As a proof of their financial capacity they shall produce a solvency certificate or letter of commitment from any Nationalised Bank/Scheduled Bank/branches of Foreign Banks in India valid for minimum three years as indicated below, to meet the fund requirement for prepayment of railway freight and other payments relating to the contract.
Eligibility for the work of SCCL: Rs. 40.00 Crs.
Eligibility for the work of WCL: Rs. 20.00 Crs.
Eligibility for the work of MCL: Rs. 20.00 Crs.
The bidder may apply for one or more work by producing the 'Solvency Certificate or Letter of Commitment' from any Nationalised Bank/Schedule Bank/Foreign Bank as indicated above".
3. Petitioners' grievance is that for the first time by way of the impugned notification the 1st respondent-KPCL has imposed the aforesaid eligibility criteria for bidding whereby the tenderers were required to have past experience of pre-payment of freight by way of self-financing only. Also for the first time tenders for loading and supervision of movement of coal was combined with pre-payment of freight. The issue of the said impugned tender notification insisting upon the above referred preconditions has resulted in a situation that most of the companies engaged in this business hitherto have become ineligible to apply for the tender resulting in monopolistic tendencies being encouraged by none other than instrumentality of the State itself. The stipulation of self-financing the freight payment by persons having experience in self-financing is an insidious introduction by 1st respondent, obviously intended to eliminate healthy competition amongst the existing contractors with a view to favour a chosen few, the latter, tailor-made conditions of previous self-financing experience being introduced to limit the zone of consideration to a few selected companies. The petitioner has made several representations to 1st respondent both before and after submitting the tender application requesting the 1st respondent-KPCL to reconsider the eligibility criteria and to enable the petitioner and other similar companies to compete in a fair and just manner for the award of the contract. The petitioners have set out their past experience in this field. However, the 1st respondent-KPCL did not reconsider the eligibility criteria. The terms and conditions of the impugned notification are irrational, discriminatory and unfair as there is no rational nexus between the purpose of the tender and the self-financing stipulation. The objective of the tender is to contract the work of the supervision of the movement of coal. The stipulation of previous experience of self-financing has no relevance to the main objective of the tender. The stipulation is designed to favour the respondents 3 and 4. The imposition of the condition of three years experience in railway freight payment by the intending participants is arbitrary and capricious as in the absence of the existence of any such trade practice all these years, no liaison agent has the opportunity to acquire the newly stipulated qualification. The said condition has no nexus whatsoever to the object of the tender notification itself and therefore they sought for quashing of the impugned notification insofar as it seeks to prevent bona fide contractors from participating in a fair manner in the bid by declaring the said notification to be unconstitutional, illegal and restraining respondents 1 and 2 from awarding the contract in question to any of respondents 3 to 5 and for a direction to issue fresh tenders without insisting on the aforesaid unreasonable conditions.
4. The 1st respondent-KPCL, filed a detailed statement of objections contesting the claim of the petitioners. They have set out in detail in their statement of objections the reasons for effecting the changes in the tender notification as compared to the previous notifications and further they state that the present tender notification is in accordance with the international standards of payment on delivery basis. The 1st respondent-KPCL stated that in all 15 firms were furnished the tender. Out of the 15 firms who had tendered only 9 companies insisted for tender documents by enclosing application money and certificates. Having gone through the certificate produced by the firms it was noticed that only two firms qualified for all the three works, namely, respondent 3-M/s. Karamchand Thaper Brothers Limited and respondent 5-M/s. South India Corporation (Agency) Limited, and respondent 4-M/s. India Coal Agency qualified for WCL and MCL. All other tenders including the petitioners were accordingly disqualified. At that point of time, the petitioners and two other bidders requested 1st respondent to consider altering the pre-qualifying requirements. Accordingly, representations were considered and a detailed presentation of the factual position was made to the Managing Director, Finance Director, AT, Technical Director, CAM and Company Secretary on 27th June, 2001. The consensus at that meeting was that the pre-qualification conditions ought not to be diluted. Annexure-R4, the office note dated 6-7-2001 is enclosed to the statement of objections. It is also stated having regard to the past experience which resulted in unsatisfactory supply of coal and the loss caused, the matter was referred to the Technical Committee and the Technical Committee consulted the experts engaged in the field about the problem threadbare and thereafter they have suggested the ways and the arrangements so as to bring down the costs. It is on the basis of the said recommendation made by the Technical Committee these preconditions were provided. Even though representations were made by the petitioners and persons who were similarly placed requested for reconsideration, such a request was considered on its merits and ultimately it was found that the pre-qualification conditions cannot be diluted in the interest of the 1st respondent-KPCL and the public at large. The impugned tender notification containing the aforesaid eligibility criterion is a practice followed internationally known as "delivery basis". All payments world over are made by the companies on the basis of delivery. 1st respondent is rid of the botheration of quality, quantity and railway freight as these are taken care of by the Coal Transportation Agent. Further, they denied that the tender conditions are tailor-made conditions of previous self-financing experience being introduced to limit the zone of consideration to a few selected companies. The 1st respondent-KPCL is only concerned with achieving its objectives and merely because the petitioners and other tenderers have not had the good opportunity to obtain the experience, it cannot be a ground of challenge before this Court. They specifically denied that the eligibility criterion has been engineered to ensure qualification of respondents 3 and 4 and to eliminate other contenders. They denied that any monopoly has been created or that the notification is ex facie arbitrary or violative of Article 14 of the Constitution of India. There is no favoritism of any kind. Merely because the petitioner fails to qualify, it does not make a tender go bad. All tenders have to be looked at from the point of view of the owner and not from the point of view of the tenderer.
5. The other respondents viz., respondent 3 represented by Sri S.S. Ramdas and Sri Anand, and respondent 5 represented by M/s. Rangarajan and Prabhakaran (before the learned Single Judge) have also filed their statements of objections supporting the stand of the 1st respondent-KPCL and have set out in their statements of objections how they are duly qualified to be considered.
6. The learned Single Judge on consideration of the rival contentions and the law on the point relied on by both the sides has come to the conclusion there is no discrimination or unreasonableness in restricting the zone of consideration to the persons who fulfill the pre-qualifications prescribed. The prescription of pre-qualification is with a view to know the credentials, capacity and capability of managing the payment and therefore it cannot be said that the prescription of pre- qualification is arbitrary. Further, he held as the aforesaid conditions are imposed with a view to overcome the loss and in public interest it cannot be said that the stipulation of such condition has no nexus to the object to be achieved. Therefore, though judicial review is permissible in case of decision making process but not on the merits of the decision. In the instant case it is not proper for this Court to interfere with the area of contract or commerce. Accordingly, he has rejected the writ petitions.
7. As agreed, both the appeals are heard finally at the admission stage.
8. Learned Senior Counsel Ms. Indira Jaising with Mr. Basava Prabhu S. Patil for the appellant in W.A. No. 2244 of 2002 submitted that the learned Single Judge has erred in holding that this is not a case fit for intervention under Article 226 and in not considering the pre-qualification terms of the tender as arbitrary and unreasonable. Learned Counsel submitted that in transport agreements, self-financing procedure does not exist. Past solvency is not relevant. What is relevant is the capacity to pay the freight charges in the present. Respondents 3 and 4 who satisfy the said eligibility criteria were supplying coal to Gujarat Electricity Board by way of a bipartite contract and thus have acquired the said eligibility criteria and no other electricity company in the country has ever insisted on such conditions and therefore the petitioners had no opportunity to acquire such experience. But, imposing the aforesaid eligibility criteria the zone of consideration is restricted thus hampering competition and resulting in monopoly. Therefore, there is no nexus between the objectives sought to be achieved and the said condition is liable to be set aside as it is arbitrary and irrational.
9. Learned Counsel Sri K.N. Narasimha Murthy for M/s. Mulla and Mulla, Craigie Blunt and Caroe for appellants in W.A. No. 1999 of 2002 reiterated the argument and submitted that the learned Single Judge wrongly applied the decision of Tata Cellular v Union of India, and totally ignored the ratio laid down in the case of Ramana Dayaram Shetty v The International Airport Authority of India and Ors., , Therefore, the order of the learned Single Judge is liable to be set aside and the appellant is entitled for the relief as prayed for in the writ petition.
10. On the other hand, the learned Counsel Sri KG. Raghavan, for respondents 1 and 2, Sri Sundaraswamy, Ramdas for respondent 3 and Sri G.S. Visweswar for Caveator-respondent 5 contended that the learned Single Judge has rightly applied the law and has not interfered with the eligibility criteria in the tender notice. It is contended that the 1st respondent-KPCL having regard to their past experience when they suffered loss referred the matter to the Technical Committee to overcome the pitfalls and the Technical Committee containing experts after elaborate consideration of the clauses and the working of the system recommended for imposition of the aforesaid eligibility criteria which is in vogue for all international contracts and therefore when an expert body has after elaborate consideration of all aspects have come to the conclusion that such conditions are necessary for the proper working of the 1st respondent-KPCL it is not open for judicial review. It was also contended the law on the point is well-settled and that the terms of the invitation of the tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract and therefore contended that when on the basis of a Technical Committee report these eligibility criteria are introduced in the interest of the 1st respondent-KPCL organisation and in public interest, the same is not open to judicial review. Further, it was contended that merely because the petitioners were not able to satisfy the eligibility criteria it cannot be said the aforesaid conditions would result in monopolistic tendencies and are tailor-made keeping in mind the interest of respondents 3 and 4. There is no arbitrariness in those conditions, as such they contend when the learned Single Judge after reviewing the entire case-law on the point and on appreciation of facts in a proper perspective has come to a conclusion that there is no substance or merit in any of the contentions urged by the petitioners, a case for interference with such a well-considered order is not made out. Learned Counsel submits, the argument of the appellants that nobody can acquire the stipulated qualification is not correct and tenable. He also submits that the appellants even otherwise, are not eligible and cannot challenge the same and no interference is required.
11. We have gone through the entire material on record, the judgments cited by both the parties at the Bar and the well-considered judgment of the learned Single Judge.
12. So far as the law pertaining to interference with the commercial transactions by the Courts is concerned, it is well-settled that an administration decision can only be impeached if it is arbitrary, or exercised for any collateral purpose or violates the touchstone of Article 14 of the Constitution. It can also be challenged if the same is biased and tainted with mala fides. Otherwise, this Court in a contractual matter will not exercise its writ jurisdiction and cannot make a judicial review not being an appellate Court. However, each case depends on the facts and circumstances of its own.
13. In the instant case, it is not necessary to go into the facts in detail. Nor is it possible to decide the rival contentions on the basis of the alleged facts pertaining to the experience and other qualities as contended in the respective affidavits in the writ petition. Even if it is possible to decide a particular matter on the basis of the contention raised in the affidavit that would not be a ground to exercise extraordinary jurisdiction under Article 226 in the facts of the instant case. The only question that has to be considered in the facts of the given case is whether condition can be imposed in the tender notice particularly to the eligibility criterion and it calls for judicial review. In other words, the point that arises for our consideration is whether there is any arbitrariness in imposing the impugned eligibility criteria, there is no nexus between the aforesaid conditions and the objects sought to be achieved and does it result in monopoly in favour of selected few and is it a fit case for judicial review.
14. The Supreme Court in the case of Tata Cellular, supra, after reviewing the entire case-law on the point has laid down the following principles as well-settled.--
"(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".
(emphasis supplied)
15. In the case of Ramana Dayaram Shetty, supra, the Supreme Court dealing with this eligibility criteria held as under.--
"We must, in the circumstances, hold that, on a proper construction, what paragraph (1) of the notice required was that only a person running a registered II Class hotel or restaurant and having at least 5 years experience as such should be eligible to submit a tender. This was a condition of eligibility and it is difficult to see how this condition could be said to be satisfied by any person who did not have five years experience of running a II Class hotel or restaurant. The test of eligibility laid down was an objective test and not a subjective one. What the condition of eligibility required was that the person submitting a tender must have 5 years' experience of running a II Class hotel, as this would ensure by an objective test that he was capable of running a II Class restaurant and it should not be left to the 1st respondent to decide in its subjective discretion that the person tendering was capable of running such a restaurant. If, therefore, a person submitting a tender did not have at least 5 years' experience of running a II Class hotel, he was not eligible to submit the tender and it would not avail him to say that though he did not satisfy this condition, he was otherwise capable of running a II Class restaurant and should, therefore, be considered".
16. In Sterling Computers Limited v M/s. M and N Publications Limited and Ors., AIR 1996 SC 51, on the question of judicial review of the Government contracts, the Supreme Court while exercising its power under Articles 14 and 299 of the Constitution, observed that the Court cannot act as Appellate Authority and examine details of terms of contract, and that the primary concern of Court is to see whether there is any infirmity in the decision making process.
17. In Air India Limited v Cochin International Airport Limited and Ors., AIR 2000 SC 80 1, their Lordships, while reversing the decision of the Kerala High Court in Cambatta Aviation Limited and Ors. v Cochin International Airport Limited and Ors., and affirming the order of the learned Single Judge, considering the Articles 14 and 226 of the Constitution observed that financial ratings cannot be sole criterion in awarding contract. In that case a public sector undertaking established for setting up new Private International Airport invited tenders from experienced companies for ground handling facilities at New Airport, and thereafter accepting the limited global competitive bidding norms tentatively recommended Cambatta who made highest offer for awarding contract, but however, on the last date invited final offer from Air India on ground that being an Airline and a national carrier it would be in position to bring more traffic of Air India and other domestic airlines. On consideration, the Supreme Court held that the action of public sector undertaking was neither arbitrary nor illegal.
18. The principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. 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. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable. Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. Judicial review is concerned, not with the decision, but with the decision making process. The duty of the Court is to confine itself to the question of legality. Its concern should be, whether the decision making authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable Tribunal would have reached or, abused its powers. When the Government is trading with the public, the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure. In contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue. But, even in such matters they have to follow the norms recognised by Courts while dealing with public property. Discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in a bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle that while judging the constitutional validity of executive decisions one must grant certain measure of freedom of play in the joints to the executive.
19. In the background of these principles if we examine the case on hand it becomes clear that the eligibility criterion prescribed by the 1st respondent-KPCL in the tender notification is not open to judicial scrutiny because the invitation to tender is in the realm of contract. The 1st respondent-KPCL must have freedom of contract. In the instant case, if any process of coming to that conclusion, is after due deliberation to achieve the object to get the coal in time and when the said eligibility criterion is incorporated in the tender notification based on the previous experience and based on the Technical Committee's recommendation the said condition cannot be held to be arbitrary or actuated with mala fides. Reviewing the said conditions would amount to substituting the view of the Court without the necessary expertise in the matter. It cannot be said that no reasonable person looking into the said condition would come to the conclusion that it is just and proper. When the object of introducing the said condition is to relieve the 1st respondent-KPCL from botheration of quality, quantity and rail freight and prompt supply of coal, it cannot be said that there is no nexus between the object sought to be achieved by the condition imposed. All that this Court is concerned is that any condition imposed should be applicable to all the persons who are similarly placed. There should not be any discrimination and there should not be any attempt to prevent any person from competition. But once the said opportunity is given merely because some of the applicants do not possess the required qualification to submit tender it cannot be said such conditions are introduced with the sole intention of excluding applicants from zone of consideration or such conditions result in monopoly in favour of any person. The argument is that this three years experience of prepayment of freight has no relevance because it is the present financial capacity of the tenderer in making prepayment now and in future is the sole criterion, the said argument is fallacious. One of the modes by which to judge a tenderer, whether he is capable of paying pre-freight now and in future is to know whether he has performed this onerous responsibility in the past for period of three years. Therefore, it cannot be said that eligibility criterion has no nexus to the object sought to be achieved. In all these matters it is the interest of public at large and the interest of the public authorities which is paramount. The tenderer's right is only for a just consideration of his tender. If they do not possess the requisite qualification, the said tenderers cannot be permitted to dictate terms and seek deletion of eligibility criteria so as to enable them to come within the zone of consideration. They do not have any such right.
20. Under the circumstances and in the facts of the given case, we find no arbitrariness or infirmity in putting the eligibility criteria in the tender notice so as to call for judicial review of the tender notification.
21. However, the learned Counsel for the respondents relied on, a judgment of a Constitution Bench of the Supreme Court in the case of Rasbihari Panda v State of Orissa, AIR 1969 SC 1081, where the Supreme Court has held as under.---
"17. Validit, of the schemes adopted by the Government of Orissa for sale of Kendu leaves must be adjudged in the light of Articles 19(1)(g) and 14. Instead of inviting tenders the Government offered to certain old contractors the option to purchase Kendu leaves for the year 1968 on terms mentioned therein. The reason suggested by the Government that these, offers were made because the purchasers had carried out their obligations in the previous year to the satisfaction of the Government is not of any significance. From the affidavit filed by the State Government it appears that the price fetched at public auctions before and after January 1968 were much higher than the prices at which Kendu leaves were offered to the old contractors. The Government realised that the scheme of offering to enter into contracts with the old licensees and to renew their terms was open to grave objection, since it sought arbitrarily to exclude many persons interested in the trade. The Government then decided to invite offers for advance purchases of Kendu leaves but restricted the invitation to those individuals who had carried out the contracts in the previous year without default and to the satisfaction of the Government. By the new scheme instead of the Government making an offer, the existing contractors were given the exclusive right to make offers to purchase Kendu leaves. But insofar as the right to make tenders for purchase of Kendu leaves was restricted to those persons who had obtained contracts in the previous year the scheme was open to the same objection. The right to make offers being open to a limited class of persons it effectively shut out all other persons carrying on trade in Kendu leaves and also new entrants into that business. It was ex facie discriminatory, and imposed unreasonable restrictions upon the right of persons other than existing contractors to carry on business. In our view, both the schemes evolved by the Government were violative of the fundamental right of the petitioners under Articles 19(l)(g) and 14 because the schemes gave rise to a monopoly in the trade in Kendu leaves to certain traders, and singled out other traders for discriminatory treatment.
18. The classification based on the circumstances that certain existing contractors had carried out their obligations in the previous year regularly and to the satisfaction of the Government is not based on any real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved i.e., effective execution of the monopoly in the public interest. Exclusion of all persons interested in the trade, who were not in the previous year licensees is ex facie arbitrary: it had no direct relation to the object of preventing exploitation of pluckers and growers of Kendu leaves, nor had it any just or reasonable relation to the securing of the full benefit from the trade, to the State".
22. In our view the aforesaid judgment has no application to the facts of this case. In the aforesaid judgment of the Supreme Court the right to make tenders for the purchase of Kendu leaves was restricted to those persons who had obtained the contracts of the previous year only. The right to make offers being open to a limited class of persons it effectively shut out all other persons carrying on the business and also new entrants to the said business. It resulted in monopoly, which was opposed to public interest. In the instant case, as stated, the right to make offers is thrown open to everyone. However, for being eligible to be considered they must satisfy the conditions prescribed in the tender notification. It is not a case of preferring the existing contractors to the total exclusion of new entrants. Admittedly, for the first time such a tender notification imposing the conditions of previous experience of prepayment of freight is imposed. Respondents 3 to 5 who satisfied the said condition are not the persons who are having contracts with the 1st respondent-KPCL prior to the issue of tender notification. They are found to be eligible for the first time as they satisfy the conditions imposed in the tender notification. The Counsel for the appellant cannot take advantage of decision in Rasbihari Panda's case, supra, as stated, as the said judgment has no application to the facts of the present case.
23. A reference can also be made to the Division Bench decisions of this Court in Tarn Tam Pedda Guruva Reddy B.T. Patil and Sons v State of Karnataka and Ors., W.A. No. 2544 of 2001, DD: 8-11 -2001, and in D.B. Masur v The Karnatak University, Dharwad and Ors., 2002 (2) Kar. L.J. 473
24. Therefore, on an overall consideration of the material on record we are of the opinion that there is no arbitrariness in imposing the impugned eligibility criteria in the tender document. There is a definite nexus sought to be achieved between the aforesaid condition and the object sought to be achieved. No monopoly is created by imposing such condition as discussed, and on the mere allegation of mala fides in the absence of any substantive material and proof, mala fides cannot be presumed and cannot be interfered with. As stated, the learned Counsel for the appellants have not been able to show any arbitrariness which touches the conscience of this Court to interfere with the impugned order. As such, we decline to interfere with the said eligibility criteria and to interfere with the order of the learned Single Judge.
25. The learned Single Judge has elaborately considered the rival contentions and after referring to the case-laws on the point has come to the just conclusion which is valid and legal.
26. On 17-4-2002, while reserving the order it was contended by the learned Counsels for the parties that by virtue of the interim order passed in the writ petition short-term agreement has been made and the appellant is doing the contract which expires on 12-5-2002. Considering the fact that Court will reopen after vacation only on 27-5-2002, the same was allowed to continue till 12-5-2002. However, it was made clear that thereafter till the order of this Court is pronounced, without issuing fresh tender respondents 1 and 2 should give opportunity to all the parties in these proceedings, for short-term arrangement which will be subject to the decision in these appeals and this will not create any right in any of the parties.
27. In view of what we have discussed above, there is no error or illegality in the order of the learned Single Judge and we find no ground to interfere with the impugned order.
Accordingly, we find no merits in the writ appeals. They are dismissed, so also any interim arrangement made as per the order also stands discharged, with no order as to costs.